(New York) – The latest revisions to China’s Criminal Law impose up to seven years in prison for “spreading rumors” about disasters, Human Rights Watch said today. The revised law, which took effect November 1, 2015, does not clarify what constitutes a “rumor,” heightening concerns that the provision will be used to curtail freedom of speech, particularly on the Internet.

“The revised Criminal Law adds a potent weapon to the Chinese government’s arsenal of punishments against netizens, including those who simply share information that departs from the official version of events,” said Sophie Richardson, China director at Human Rights Watch. “The authorities are once again criminalizing free speech on the Internet, which has been the Chinese people’s only relatively free avenue for expressing themselves.”

The National People’s Congress Standing Committee approved the addition of a provision to article 291(1) of the Criminal Law (Criminal Law Amendment Act (9)), which states that whoever “fabricates or deliberately spreads on media, including on the Internet, false information regarding dangerous situations, the spread of diseases, disasters and police information, and who seriously disturb social order” would face prison sentences – with a maximum of seven years for those whose rumors result in “serious consequences.” The vagueness of the provision means that individuals doing nothing more than asking questions or reposting information online about reported local disasters could be subject to prosecution.

In the past, the Chinese government has detained netizens who questioned official casualty figures or who had published alternative information about disasters ranging from SARS in 2003 to the Tianjin chemical blast in 2015, under the guise of preventing “rumors.”

The revision was made in the context of a wider effort to rein in online freedom since President Xi Jinping came to power in 2013:

  • In August 2013, the authorities waged a campaign against “online rumors” that included warning Internet users against breaching “seven bottom lines” in their Internet postings, taking into custody the well-known online commentator Charles Xue, and closing popular “public accounts” on the social media platform “WeChat” that report and comment on current affairs;
  • In September 2013, the Supreme People’s Court and the Supreme People’s Procuratorate (the state prosecution) issued a judicial interpretation making the crimes of defamation, creating disturbances, illegal business operations, and extortion applicable to expressions in cyberspace. The first netizen who was criminally prosecuted after this took effect was well-known blogger Qin Huohuo, who was sentenced to three years in prison in April 2014 for allegedly defaming the government and celebrities by questioning whether they were corrupt or engaged in other dishonest behavior;
  • In July and August 2014, authorities suspended popular foreign instant messaging services, including KakaoTalk, claiming the service was being used for “distributing terrorism-related information”;
  • In 2015, government agencies such as the State Internet Information Office issued multiple new directives, including tightening restrictions over the use of usernames and avatars, and requiring writers of online literature in particular to register with their real names;
  • In 2015, the government has also shut down or restricted access to Virtual Private Networks (VPNs), which many users depend on to access content blocked to users inside the country and also help shield user privacy;
  • In March 2015, authorities also deployed a new cyber weapon, the “Great Cannon,” to disrupt the services of GreatFire.org, an organization that works to document China’s censorship and facilitate access to information;
  • In July 2015, the government published a draft cybersecurity law that will requires domestic and foreign Internet companies to increase censorship on the government’s behalf, register users’ real names, localize data, and aid government surveillance; and
  • In August 2015, the government announced that it would station police in major Internet companies to more effectively prevent “spreading rumors” online.
     

Activists in China are regularly prosecuted for speech-related “crimes,” Human Rights Watch said. The best known of these crimes is “inciting subversion,” which carries a maximum of 15 years in prison. But authorities have also used other crimes such as “inciting ethnic hatred,” as in the case of human rights lawyer Pu Zhiqiang, who has been detained since May 2014 for a number of social media posts questioning the government’s policies towards Uighurs and Tibetans.

While providing the public with accurate information during disasters is important, the best way to counter inaccurate information would be to ensure that official information is reliable and transparent, Human Rights Watch said.

Above all, journalists should have unimpeded access to investigate and inform the public about these events, and the wider public should have the freedom to debate and discuss disaster response.

“The casualties of China’s new provision would not be limited to journalists, activists and netizens, but the right of ordinary people and the world to know about crucial developments in China,” Richardson said. “The best way to dispel false rumors would be to allow, not curtail, free expression.”

Posted: January 1, 1970, 12:00 am

“Sometimes [having your period] is a challenge. [It] stops girls from going to school.”

Rebeca, who was 17 when she spoke to Human Rights Watch in 2016, should know. She and other school girls in Tanzania told us they lacked menstrual supplies, toilets with privacy, and information needed to handle menstruation. They described taunts and humiliation when, because of inadequate materials, they leaked blood, missing school as a result.

Female and male latrines at a secondary school in Mwanza, northeastern Tanzania. Many students told Human Rights Watch that they had to use dirty and congested pit latrines. 

© 2016 Elin Martínez/Human Rights Watch

Girls around the world face the same challenge – often with the same, dispiriting result.

The right to sanitation entitles everyone to sanitation services – including to manage menstruation – that provide privacy, ensure dignity, and are safe and hygienic.

This is often not the case. Human Rights Watch research from 2005 to 2017 documents obstacles people encounter when trying to perform the simple acts of relieving themselves or managing menstruation safely and with dignity.

In almost every setting we examined, including schools, prisons and jails, and refugee camps, we found that discrimination based on caste, gender, disability, age, or other status makes it even harder for some people to access adequate sanitation services than others.

We found women and girls often lack safe and private sanitation facilities and materials to manage their menstruation. This can undermine their health, education, work, and gender equality.

A lack of access to safe and accessible sanitation facilities can also impact the rights of people with disabilities, older adults, and transgender and gender non-conforming individuals.

To ensure adequate sanitation for all people, governments need to do more than simply commit new funding and resources. They also need to address discrimination and distinctive challenges for certain populations that prevent some people from accessing sanitation.  

Finance and water and sanitation ministers from around the world gathering in Washington, DC, this week for a high-level meeting on global sanitation and drinking water challenges have an opportunity to do just this.

Otherwise, sanitation will continue to be viewed as something for some people.

But it’s not. Sanitation is a human right for all people. Governments need to be treating it that way.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Introduction: Sanitation as a Human Right

“Nayla” (a pseudonym) was a 52-year-old teacher from Daraa, Syria, when anti-government protests began in March 2011. In 2012, she agreed to transport a military defector and was detained by government soldiers at a checkpoint. The soldiers shot at her car and beat her. They took her to a military building where she was held in solitary confinement and denied food and water for two days. She was transferred to another cell and detained for nearly seven months. When Nayla reflected on her detention and subsequent release, she said, “You feel you will never be free again – that you will never see your family, never go to [a proper] toilet. It is a joy just to go to the toilet when you want.”[1]

It is not surprising that in reflecting on the trauma she experienced over those seven months, Nayla associated her longing for a toilet with freedom. The manner in which a person is able to manage bodily functions of urination, defecation, and menstruation is at the core of human dignity. In her report on sanitation, the then-United Nations Special Rapporteur on the human right to safe drinking water and sanitation stated, “Sanitation, more than many other human rights issue, evokes the concept of human dignity.”[2] She continued, “Consider the vulnerability and shame that so many people experience every day when, again, they are forced to defecate in the open, in a bucket or in a plastic bag. It is the indignity of this situation that causes the embarrassment.”[3]

Lack of sanitation is a pervasive human rights concern globally that impacts other rights, including gender equality. While not an exact marker of the status of the right to sanitation, as of 2015, 2.4 billion people around the world are estimated to be using unimproved sanitation facilities, defined as those that do not hygienically separate human excreta from human contact.[4] Lack of sanitation is not only an affront to an individual’s dignity and rights, but endangers the rights to the highest attainable standard of health and to safe drinking water of other people because of the contaminating nature of human feces. Nearly a billion people practice open defecation—which has been linked to malnutrition, stunting, and increased diarrheal disease, among other negative impacts.[5]

Sanitation does not turn solely on the presence of a toilet or latrine.[6] It encompasses the entire system for the collection, transport, treatment, and disposal or reuse of human excreta and associated hygiene.[7] Breakdowns or barriers at any point within the system can lead to devastating impacts on people’s lives and rights.

Though not explicitly stated in the International Covenant on Economic, Social and Cultural Rights, the right to sanitation is derived from the right to an adequate standard of living.[8] The Committee on Economic, Social and Cultural Rights has reaffirmed that the right to sanitation is an essential component of the right to an adequate standard of living, and “integrally related, among other Covenant rights, to the right to health, … the right to housing, … as well as the right to water.”[9] According to UN General Assembly Resolution 70/169, the right to sanitation entitles everyone “to have physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, and socially and culturally acceptable and that provides privacy and ensures dignity.”[10]

Despite the fundamental relationship between human dignity and the right to sanitation, national and international programs that address water and sanitation invariably invest more in water than in sanitation.[11] The UN Millennium Development Goal’s target (2000-2015) of halving the portion of those without access to safe drinking water—a concept not consistent with the definition of the human right to water—was formally met in 2010, yet progress on the sanitation target still lagged far behind. Billions of people are currently without access to improved sanitation.[12] Even where access has improved, large disparities exist between those who have access to sanitation and those who do not, with nearly half the world’s rural population lacking access.[13]

In development contexts, sanitation and water have long been linked as a congruent right, while the human rights community has interpreted them as distinct rights.[14]The UN’s 2030 Agenda for Sustainable Development, adopted in September 2015, confirmed the separate but related nature of water and sanitation, calling for availability and sustainable management of water and sanitation for all.[15] It includes independent targets for each, and provides a framework for monitoring and action related to sanitation. Though not defined consistently with the full definition of the right to sanitation, Target 6.2 calls for access to adequate and equitable sanitation and hygiene for all by 2030 and for an end to open defecation, paying special attention to the needs of women and girls and those in vulnerable situations.[16]

A similar human rights interpretation of the separate but interrelated nature of the rights to water and sanitation has now been recognized by states in UN General Assembly Resolution 70/169, adopted in December 2015, which for the first time recognized the distinction between the human right to water and the human right to sanitation. By adopting the resolution, the General Assembly clarified that the rights to water and sanitation, while linked, are separate from one another and have distinct features, although remain part of the right to an adequate standard of living and are interrelated to other human rights.

As a distinct right, intimately related to the right to water (and other human rights, including the right to health) and similarly derived from the right to an adequate standard of living, the right to sanitation should be accorded the same level of importance as other components such as food and housing.

This report provides a factual foundation for understanding the distinct nature of the right to sanitation and denigration of human dignity related to its violation by describing contexts in which women, men, and children struggle to realize their right to sanitation. It draws from more than a decade of Human Rights Watch research that highlights the wide variety of abuses and obstacles people encounter in trying to perform the simple act of safely relieving themselves with dignity, including deliberate acts of abuse or discrimination. Although not an exhaustive review of the right to sanitation, this research shows that the deprivation of the right to sanitation can exacerbate multiple human rights violations.
 

This report looks at sanitation in:

  • Schools
  • Detention, Prisons, and Jails
  • Immigration Detention Facilities, Migration and Displacement Camps and Centers
  • Health Facilities and Residential Facilities for Persons with Disabilities
  • Workplaces
  • Households

Our key findings include:

  • Many governments have not fully respected, protected, or fulfilled the right to sanitation in the context of public facilities, particularly in cases where people are deprived of their liberty and therefore, are completely reliant on the state for such services.
  • In many contexts, women and girls and persons with disabilities face unique challenges, including difficulties in managing menstruation.
  • Women, girls, and transgender persons sometimes face harassment or violence when there is no safe facility.
  • Poor or no access to sanitation often occurs in the context of other human rights abuses and compounds their effects. For example, poor sanitation in the context of compulsory drug detention centers exacerbates the human rights impact of the arbitrary deprivation of liberty.
  • Participation in public affairs is a key human rights principle, yet government failure to consult with communities, particularly marginalized minorities, and allow for meaningful participation in decision-making around sanitation may compound discrimination and exclusion in access.
  • Government efforts to progressively realize the right to sanitation to the maximum of available resources may be undermined by gaps in accountability or corruption at the national or local level.

While this report does not document every sanitation-related human rights concern, it illustrates how the right to sanitation can be undermined in a variety of contexts through government action and inaction. It is intended to complement the research and analysis of the right to sanitation by the UN Special Rapporteur on the human right to safe drinking water and sanitation, and others.[17]

Our research shows that barriers to realizing the right to sanitation go beyond the availability of resources. Discrimination—based on caste, gender, disability, old age, or other protected status—may prevent some people from accessing adequate sanitation. Corruption or mismanagement may reduce the impact of government investments in sanitation. Authorities might not act to ensure that people in their care or custody can access facilities.

As states and donors work toward commitments made under Goal 6 of the 2030 Agenda for Sustainable Development, more is needed than commitments to new resources. Instead, efforts toward meeting Goal 6 should include greater action to address the barriers to realizing the right to sanitation in all spheres of life. While this includes increasing resources—through budgets or development funding—it should be paired with a commitment to eliminate barriers to sanitation in those spheres under the control of government, to address discrimination, and to ensure human rights principles of accountability and participation undergird investments in sanitation.

The Right to Sanitation in Context: A Selection from Human Rights Watch Reporting

This section analyzes the right to sanitation by grouping examples from past Human Rights Watch reports into six different contexts:

  • Schools
  • Detention, Prisons, and Jails
  • Immigration Detention Facilities, Migration and Displacement Camps and Centers
  • Health Facilities and Residential Facilities for Persons with Disabilities
  • Workplaces
  • Households

The examples below are drawn from research from diverse country settings over a period of 12 years from 2005 until 2017, showing patterns of discrimination in access to sanitation, risk of violence, and lack of participation.

The descriptions of abuses, challenges, or violations related to the right to sanitation presented in this report are offered as illustrations of past occurrences, and not as current accounts of the facts. They aim to help develop a more complete understanding of the right to sanitation in context, and the types of problems that need to be addressed. This is not an exhaustive representation of the types of violations of the right to sanitation experienced around the world—the Special Rapporteur on the human right to safe drinking water and sanitation presented a more comprehensive account in 2014.[18]

Schools

There is a clear relationship between the right to sanitation and the right to education. Lack of clean water and sanitation can increase the risk for waterborne illnesses and diarrheal disease, and lessen the amount of time children are in school.[19] According to World Health Organization (WHO) estimates, 88 percent of deaths from diarrheal disease can be attributed to lack of clean water, sanitation, and hygiene.[20] Governments have the obligation to progressively realize the rights to water and sanitation in the context of schools to the maximum of their available resources. However, some students face barriers in accessing sanitation in school due to state action, inaction, or discrimination. Human Rights Watch has documented instances of barriers to sanitation in schools due to military or police occupation, destruction of facilities during armed conflict, and discrimination on the grounds of caste, refugee status, gender, disability, or gender identity.

Government action, inaction, and discrimination can create barriers to adequate sanitation in school settings that undermine several human rights and have devastating, and sometimes lifelong, consequences upon the educational opportunities of the most vulnerable students. The right to sanitation and education are interrelated and without access to adequate sanitation in schools, children will continue to miss out on valuable opportunities to attend class and learn.

Military or Police Occupation of Schools and Destruction of Facilities

Human Rights Watch research has found that even where governments have taken steps to invest in sanitation in schools, military or police occupation of a school can render these facilities inaccessible, particularly for girls. In India’s Bihar and Jharkhand states, Human Rights Watch found in 2009 that occupying police refused to let the students use sanitation facilities, even when the government had invested in such facilities, because the police wanted to use them exclusively.[21] This forced children to go to the toilet in more public spaces, causing anxiety and problems for some students, especially girls. A female student in Bihar told Human Rights Watch in 2009, “I generally go to a nearby field [to go to the toilet]…. I feel ashamed doing this.”[22] One 15-year-old girl, Lona, who studied at a high school that was occupied by police in Jharkhand in 2009, explained the impact this had on girls: “It becomes very difficult for a girl to stay in school for such a long time without a toilet. We are not allowed to go and use the toilet in the police camp.”[23]

In another instance, where toilets were destroyed by armed groups at Barwadih Primary School in Jharkhand, a teacher at the school explained in 2009 how difficult it was to be without a facility:

Particularly during the rainy season girl students face problems for going to the toilet because they have to walk to the open space for more than two kilometers. They find it difficult to meet this challenge.[24]

Discrimination Based on Caste

Some schools in India visited by Human Rights Watch in Dalit neighborhoods lacked toilets and clean drinking water common in schools located in non-Dalit neighborhoods.[25] In schools Human Rights Watch visited in 2014 that served both Dalit and non-Dalit children, some of the Dalit children told Human Rights Watch that teachers restricted their access to the toilet. A boy at one school told Human Rights Watch, “The Hindu boys are allowed to go to the toilet but we are not given permission.”[26] Vijay, 14, told Human Rights Watch he dropped out after being beaten for urinating after being refused permission to use the toilet: “The teacher didn’t let us go to the toilet. One day, I asked her for permission to go to the toilet but she said, ‘Sit down, go later.’ So I urinated outside the window and she hit me so hard with a stick that my hand broke. I went to the hospital to get my hand bandaged.”[27]

Discrimination Based on Refugee Status

Syrian refugee families living in Lebanon described to Human Rights Watch in 2015 and 2016 discrimination and the difficulties their children faced when trying to access sanitation facilities in public schools. Human Rights Watch interviewed families who reported that some teachers would not allow Syrian students to use the bathroom, or in some cases, the facilities at school were too dirty to use.[28] In one case, they described how staff locked bathrooms in the afternoon during the all-Syrian shift at one school.[29] Hedaya, 31, who had three children enrolled in public school, said, “They lock them for the second shift because they don’t want Syrians making them dirty. I spoke to the school teacher, but it solved nothing.”[30]

Children with Disabilities

Lack of accessible sanitation at school is a significant barrier to education for children with disabilities. Human Rights Watch found in Nepal in 2011 that some schools have no accessible toilets, so many of the children with disabilities who spoke with Human Rights Watch reported having to wait to go home to be able to go to the bathroom. Some had to call on their mothers to come from home every time they needed to use the restroom, so their mothers could assist them in the toilet.[31] One boy with a spinal cord injury in Pokhara told Human Rights Watch about his experience in a school without accessible toilet facilities: “My class is on the second floor. There’s a ramp [built by a local nongovernmental organization] but my friends have to help push me up. There’s no toilet that I can use so I have to go to the toilet at home and then wait until I come back from school.”[32] A 23-year-old woman with severe physical disabilities in South Africa described in 2014 similar challenges of having no ramps to access toilets: “I need to be carried everywhere … there were no ramps to go to the toilet. I wasn’t happy at school and wanted to move.”[33]

In 2013 Human Rights Watch found similar accessibility challenges for children with disabilities in China. For example, some schools require that parents take care of their children at school as a pre-condition of admitting the children. According to one disability rights activist, one school administrator said, “unless a parent accompanied the child, [they could not enroll the child] because…[t]he teacher cannot accompany the child to the bathroom, or do much else.”[34] In this case, a grandmother accompanied the child to school each day to take him to the bathroom.[35] A mother of a girl with cerebral palsy told Human Rights Watch that she also had to care for her child at school:

Their school has only one bathroom on the first floor [and her class is on the fourth floor]…. I bring her to school in the morning, and after two classes I go there again to help her to the bathroom, and again in the middle of the afternoon. I go back and forth many times.[36]

An educator in South Africa told Human Rights Watch in 2014 that her school, though intended for children with disabilities, cannot take students with special toilet needs.[37] One mother of a 10-year-old boy with spina bifida told Human Rights Watch that her son was out of school for over three years because schools could not accommodate his toilet requirements.[38] A mother of another boy with spina bifida told Human Rights Watch her son has had infections because school staff did not change his diapers regularly.[39]

Barriers to Girls’ Education

A latrine used by approximately 800 students at a high school in Haiti’s Central Plateau.

© 2014 Human Rights Watch

Girls in school may miss parts or all of school days due to lack of sanitation facilities that would allow them to manage their menstruation. Private and clean sanitation facilities are essential to ensuring girls can manage their hygiene during menstruation, without disruption to their education. Human Rights Watch spoke with girls in Haiti in 2014 who leave school to go home to wash and change the materials they use to manage their menstruation, because they cannot do that at school—leading some to miss as much as 30 minutes of instruction every time they need to change their materials.[40] Some teachers told Human Rights Watch that girls sometimes stay at home during menstruation because they have no option to manage their menstrual hygiene at school.[41]
 

In Nepal, Human Rights Watch spoke with women and girls in 2016 who described the difficulties of managing menstrual hygiene at school, and the consequences this had upon girls’ education. Chandni Rai, 19, said:

We had a toilet, but it was not good. If there are proper toilets, girls will feel better when they are on their periods and have to change their pads. Many girls stay home during their periods. They were marked absent and wouldn’t be able to learn. They couldn’t catch up because the course would have moved on. They would try to sit with their friends and catch up, but the teacher wouldn’t repeat [information]. Some of them left school because of this.[42]

Female and male latrines at a secondary school in Mwanza, northeastern Tanzania. Many students told Human Rights Watch that they had to use dirty and congested pit latrines. 

© 2016 Elin Martínez/Human Rights Watch

In 2016 girls in Tanzania described the challenges they faced in managing their menstruation at school. Many girls told Human Rights Watch they use cloths that may leak or be difficult to keep hygienic because they cannot afford to buy sanitary pads, and sometimes miss school because adequate facilities to manage menstruation in school are not available. Rebeca, 17, said:

Sometimes [having your period] it’s a challenge and [it] stops girls from going to school. If you sit for too long, you can find that blood appears on your skirt. Boys laugh at you. We discuss this with friends. They can give you a sweater to cover your skirt; then you ask the teacher to let you go home.[43]

While the lack of a safe space to manage menstrual hygiene impacts all girls, the difficulty that girls with disabilities have in moving, dressing, and using the bathroom independently increases their vulnerability to intrusive personal care or abuse. Menstrual hygiene management and accessible sanitation facilities are particularly important in enabling girls with disabilities to continue their education.[44] Without such facilities, their education may be stopped abruptly when they begin menstruating. In Nepal, for example, Human Rights Watch found in 2011 that girls with disabilities often drop out of school once they reach puberty because there are no support services in school to help them during their periods.[45] One parent explained the difficult decision to keep her daughter home from school once she started menstruating:

When [my daughter] was 12, she started getting her periods. I would put the pad on her and she would take it out. She was also attracted to boys. I was scared that something could happen. Something sexual. There are no bolts on the doors. She got no sexual education. Neither do we know how to teach them nor did the teachers in her school. I decided not to send her to school.[46]

Transgender and Gender Non-conforming Students

Transgender students may face particular risks when using the toilet. Natasha, a 33-year-old trans woman in Malaysia, recalled to Human Rights Watch in 2014 the harassment she suffered in secondary school when using the toilet: “I went to the boys’ toilet but I was always disturbed there. The boys would prevent me from leaving the toilet. They would pinch me and touch me, and call me names.”[47] Transgender students in the United States interviewed by Human Rights Watch in 2015 and 2016 said that being made to use facilities that did not correspond to their gender identity made them feel unsafe at school and exposed them to verbal and physical assault.[48]

In addition to safety concerns, restricting access to bathroom facilities can negatively affect the physical and mental health of transgender and gender non-conforming students. Many transgender students interviewed throughout the US in 2015 and 2016 told us that when they lacked a safe or accessible bathroom in school, their standard strategy was to avoid all school bathrooms.[49] Sans N., a 15-year-old transgender boy in Utah, told Human Rights Watch: “I just don’t go to the bathroom at school. It’s just so awkward. I just look at the signs and I’m like, I can’t go in the ladies’ because it makes it me uncomfortable, and I can’t go in the boys’ because I’m going to get yelled at.”[50]

Research indicates that avoiding bathroom use for long periods of time is linked to several health complications, including dehydration, urinary tract infections, and kidney problems.[51] Cassidy R., a self-described agender 18-year-old in Utah, recalled: “I know a lot of my friends just didn’t go to the bathroom and suffered a lot of infections and health problems because of that.”[52]

The ability of transgender and gender non-conforming students to participate fully in the school community on an equal footing with their peers, and to learn, is also jeopardized when they are preoccupied with the lack of a safe space to relieve themselves and perform bodily functions in school.

Detention, Prisons, and Jails

Governments have a heightened obligation to ensure adequate sanitation for populations directly under their control, including civil and criminal detainees.[53] Yet, it is in detention that Human Rights Watch has found some of the most startling deprivations of this right. While some violations of the right to sanitation are due to a failure to ensure an adequate standard of living for imprisoned populations, other violations arise when sanitation is used in a manner to abuse, torture, and degrade prisoners and detainees.

Although the right to sanitation for imprisoned populations may arise due to a lack of adequate and hygienic sanitation facilities, it is also denied as a humiliating and degrading form of punishment, torture, and abuse. Government action is necessary to ensure not only that prisons and jails have safe and adequate sanitation facilities, but that all prisoners are able to regularly utilize the facilities and manage their hygiene without fear.

Omission of the Duty to Ensure an Adequate Standard of Living

Many prisons and jails do not have adequate resources for the number of detainees they house—leading to deplorable conditions. In Uganda, street children detained by police as “criminals” described to Human Rights Watch in 2013 and 2014 the limited access to toilets in detention. One 8-year-old child, detained with adults in a police cell for five days, told Human Rights Watch: “There was nothing to sleep on but urine in the floor. We used a bucket to defecate in and urinate in, and there was overflow on the floor.”[54] Likewise, an inmate in a Zambian prison noted in 2009 that the two toilets reserved for 150 detainees “were always overflowing as people have diarrhea all the time.”[55]

In Haiti, Human Rights Watch found similar conditions in a prison in St. Marc in 2012 where 36 prisoners occupied a cell designed for 8.[56] Prisoners relied on buckets in the cell to contain their excreta, leading to an unbearable stench in the cells. In 2012, the UN in Haiti marked an increase in inmate deaths related to a resurgence of cholera in the unhygienic prisons.[57] In Kenya, inmates arbitrarily detained without charge told Human Rights Watch that the buckets that served as toilets inside their cells were only emptied when full.[58] Some of these inmates had contracted diarrhea while in detention that they believe to be related to the conditions of detention.[59]

In some facilities, the lack of toilets may open up detainees to further abuse. For example, in Sri Lanka, Human Rights Watch found in 2011 and 2012 that poor conditions in camps set up by Sri Lankan security forces to detain ethnic Tamils led some detainees to defecate in plastic bags or in their detention rooms, which lacked toilet facilities. One detainee told Human Rights Watch: “There was no toilet so I had to defecate in the room. They would beat me for this but would not take me to a toilet.”[60] Female prisoners in Zambia reported similar concerns in 2009: “If we excrete for any reason [in the cell]… we were told we would be punished by the cell captain—we must get permission from cell captain to poop when necessary.”[61]

Women detainees may be further impacted by poor sanitation if they are not provided with the materials and privacy needed to manage their menstruation. The revised UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) provide that “sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner,”[62] and that prisoners “shall be provided with water and with such toilet articles as are necessary for health and cleanliness.”[63] Despite this standard, women are not always provided with materials to manage menstruation while in prison. In Zambia, for example, an inmate named Catherine, 38, told Human Rights Watch in 2009, “The prison does not provide us with soap, toothpaste, or sanitary pads. If others don’t bring them for us, we have nothing.”[64] Instead, she said detainees in the facility must rely on family members, church donations, or exchange sex or labor to obtain sanitary pads and other essential hygiene products.[65]

Human Rights Watch found that detainees or prisoners with disabilities may experience even more challenges than the majority of the detainee population. For example, in Zambia, Chrispine, a 46-year-old detainee with an amputated leg, told Human Rights Watch in 2009, “I find it difficult to balance, jumping over my colleagues in the cell to the toilet.”[66]

In prisons throughout the United States, Human Rights Watch found that mobility-impaired older inmates often confront a shortage of wheelchair-accessible bathrooms, including showers with seats, bars, and no shower lip to step over; and too few rooms on a first floor so they are not required to climb stairs.[67]

The conditions in drug treatment or compulsory drug detention centers can also be very poor. In Russia, for example, in 2007 Human Rights Watch spoke with a drug user from Kazan who had been in a detoxification clinic. “The toilet was horrible,” he said. In addition, in 2007, drug users told Human Rights Watch that the inpatient clinic in Penza only had one bathroom for all patients, both men and women. Furthermore, the bathroom also served as a smoking room. A woman who had been in the facility told Human Rights Watch that when she went to the bathroom at the facility, she would have to ask a group of smoking men to turn around and look the other way so she could use the toilet.[68]

Pueksapa, who was held at the Somsanga drug detention center in Laos for nine months, told Human Rights Watch in 2010 that “there was not enough water for the showers, only a few minutes to shower every day.”[69]

At a drug detention facility in Vietnam, a detainee who had spent a month in solitary confinement told Human Rights Watch in 2010: “It was bad. There was no water in the toilet or for showering or feminine hygiene.”[70]

Violations of the Right to Sanitation arising from Abuse, Torture, and Degrading Treatment

In some prisons and jails where adequate sanitation facilities do exist, authorities may use toilets as a form of punishment to abuse and torture prisoners. Prisons or jails may have hygienic toilets, but authorities may limit detainees’ access to them, causing both emotional stress and potentially physical discomfort. Human Rights Watch research in a Belarusian detention facility in 2011 revealed some of the physical impacts of detainees’ coping mechanisms for poor access to sanitation. In a detention facility in Minsk, prisoners were only allowed access to a toilet twice a day.[71] One young female detainee told Human Rights Watch, “They took us to use a toilet twice a day which really wasn’t enough for me. I stopped drinking fluids because I could not wait between the toilet breaks. I started having serious health problems as a result.”[72] The detention facility doctor subsequently examined her and requested she have more regular access to the toilets, which was granted.

Prison officials sometimes use the lack of proper waste management in a facility as additional punishment for prisoners. For example, in Cote d’Ivoire, a man who had been detained at a military police camp told Human Rights Watch in 2012:

One of the cells was for people to piss and shit. It was the only room with a hole for a toilet, but there were so many of us that soon the whole room was just covered with urine and shit. One day, I guess [the soldiers who interrogated me] decided they didn’t like my answers. […] [T]hey put me in the toilet room; there were a couple other people in their already. The smell was horrible, and I had open wounds from being beaten. You couldn’t sit anywhere without being in [excrement]… They did this to people every day, […]. If they weren’t happy with your answers, or thought you were acting up, they threw you in the shit room for hours, sometimes at night…. By the time I was released, I’d developed these skin infections [seen by Human Rights Watch, though the cause could not be confirmed] on my arm and leg.[73]

Detainees themselves may be charged with cleaning toilets in prisons and jails. One inmate in a prison in Zambia said in 2009 that “the remandees are told to pick up the toilet tissues after the night and clean up the area in the cell. This is without gloves, it spreads diseases. There was a cholera outbreak a while back in cell three, [which made] 15 inmates [sick].”[74]

In 2010, interviewees who had recently been detained at Somsanga Treatment and Rehabilitation Center in Lao described staff ordering the punishment of individuals who had infringed center rules in ways that constituted inhuman and degrading treatment. In addition to being beaten by fellow detainees, Paet, a detainee, said:

They sent us to the septic tank. We had to take the shit to the main garbage place. Then we had to clean the shit out of the septic tank with water. It was disgusting. Some were vomiting and others were dizzy. We had to stand in the shit. There were worms in it.[75]

Human Rights Watch has also documented how detention officials sometimes restrict toilet usage as an interrogation tool. For example, L.V., a detainee in an Ethiopian prison, told Human Rights watch in 2013 that his access to the toilet was linked to interrogation methods in the prison. L.V. told Human Rights Watch that when he first arrived, he was only allowed to use the toilet once a day. After two or three months, guards permitted him access to the toilet twice a day. According to L.V., “They investigate, investigate, punish, they want to get something, and either they get some evidence or they don’t and then they start showing kindness.”[76] L.V. also reported being handcuffed for five months. He told Human Rights Watch that among other difficulties, “It was also very difficult to remove my trousers when I went to the toilet.”[77]

In some cases, Human Rights Watch has documented toilets as a tool of torture or abuse. A man detained by the Sri Lankan military in 2006 was held in a toilet for 28 days, during which he was tortured every day. He told Human Rights Watch that the torture escalated and that on one occasion, “they hung me upside down with my head touching the used toilet bowl and threatened me that they would make me eat my feces.”[78] In China, Human Rights Watch spoke with a former detainee in 2014 who reported that detainees were forced to stand on dirty toilets.[79] Other detainees in China reported to Human Rights Watch that the use of restraints prevented detainees from being physically capable of using the toilet: “Two different inmates were chained to the floor for two weeks, which meant they were unable to go to the toilet, another inmate would bring them a bucket.”[80]

Perversely, the privacy from intrusive security cameras afforded by some toilet facilities in detention has made some prisoners more vulnerable to abuse by prison officials. A man who suffered severe abuse in a prison in Bahrain in 2015 reported to Human Rights Watch that riot police officers beat him and two other inmates in the room that had sanitation facilities because there was no camera there.[81]

Limited access to toilets can also make inmates more susceptible to beatings as a form of punishment. At Gikondo Transit Center, an unofficial detention center in the Gikondo residential suburb of Kigali, Rwanda, Human Rights Watch found in 2014 that female detainees with young children or babies were particularly vulnerable as they were frequently beaten when a small child or baby defecated on the floor. A female detainee explained how she was beaten because her ill daughter was not allowed to use the toilet and ended up defecating on the floor:

My child had a bad stomach and she could not leave the room to use the toilet. If a child [defecates] in the room, they hit the mother. The “counselor” [prison boss] does it. My daughter needed to use the toilet and I tried to open the door, but the counselor refused. Since my child was in pain, I decided I would rather be beaten so she could use the toilet.[82]

Restricted access to toilets or those that lack privacy may open up detainees to risks of sexual assault or abuse. When Uzbek police arrested Elena Urlaeva, a leading human rights defender in Uzbekistan, in 2015, they sexually violated her, conducting a vaginal and rectal cavity search that caused her to bleed.[83] They then restricted access to the toilet, and sexually harassed her when she did try to relieve herself. She said:

I needed to use the toilet but they would not allow me and so I asked for a bucket but they said “You’ll go outside and we will film you bitch and if you complain about us then we’ll post the video of your naked ass on the internet.” I couldn’t stand it any longer and was forced to relieve myself outside in the presence of police officers who filmed me.[84]

According to Urlaeva, she had “never experienced such humiliation in [her] life.” [85]

Migration and Displacement Camps and Centers, Immigration
Detention Facilities

International law ensures the rights to water and sanitation for persons fleeing persecution, conflict or disaster, migrating for work, or being displaced for other reasons.[86] However, Human Rights Watch research has found that it is difficult for many refugees, migrants, or internally displaced people to realize these rights, particularly in the context of camps or detention facilities. Sanitation systems in camps for refugees, displaced persons, asylum seekers, and migrants are often inadequate.

Migration and Displacement Camps and Centers

Human Rights Watch found in 2012 that ethnic Kachin refugees from Burma in China’s Yunnan Province faced serious health concerns from lack of sanitation facilities. Refugees were often forced to urinate or defecate in holes in the ground. The head of a camp that had one such hole for 300 refugees told Human Rights Watch, “We dug one toilet hole with four stalls for the whole camp, and now the hole is full, so it smells very bad.”[87]

Migrants and asylum seekers in makeshift camps in Calais, France, which Human Rights Watch visited in 2015, had no access to sanitation, and very limited access to running water.[88] Zeinab, a 23-year-old woman from Ethiopia living with her husband in the largest camp, told Human Rights Watch that she washed outside with a plastic sheet around her. “More than food, not having a bathroom is a bigger problem,” she said.[89] The camps were dismantled in October 2016.

Asylum seekers and migrants at three reception centers on Samos, Lesbos, and Chios in the Greek islands, known as “hotspots” for refugees fleeing conflicts in the Middle East, Asia, and Africa, described unsanitary and overcrowded conditions in the centers when Human Rights Watch visited in May 2016. A 27-year-old Palestinian Syrian man in the Moria camp said, “The toilets are always dirty and flooded. They never clean them.”[90] A Syrian woman, 20, at the VIAL detention facility said:

There are only three toilets for women, not three bathrooms, but three toilets. We have to line up for two hours to use the bathroom. We are not given any soap. There is no soap dispenser in the bathroom. The water is ice cold when it is available at all.[91]

The lack of proper sanitation facilities posed serious health risks for people displaced by conflict in 2008 in Sri Lanka’s Vanni region. A humanitarian worker told Human Rights Watch, “When someone is displaced, they don’t bring their toilet with them.”[92] Health authorities raised concerns that lack of properly constructed latrines led to widespread open defecation, which could contribute to possible outbreaks of waterborne diseases and increase risks of sexual and gender-based violence for women forced to relieve themselves outdoors. A hospital in the region also reported unusually high numbers of snake bites since the government had compelled the humanitarian community to withdraw from providing services to the displaced: 194 snake bite patients in one month alone, including 2 fatal attacks. Most of these snake bites were reportedly due to the widespread open defecation caused by the lack of sanitation facilities.[93] Anxiety about snake or animal bites has been associated with open defecation in other parts of the world as well.[94]

Women and girls living in displacement camps in India told Human Rights Watch a year after the 2004 Indian Ocean tsunami that they did not have proper, safe, and private sanitation or bathing facilities. One woman pointed to some shrubs behind the shelter and said that is what she and her daughters used as a toilet.[95] Likewise, in Haiti after the earthquake in 2010, Human Rights Watch found that in the displacement camps, women and girls reported insufficient and unsafe sanitation facilities. Many complained of having terrible vaginal infections and were not able to manage their personal hygiene, particularly during menstruation.[96]

One Haitian woman recounted the fear she and other women experienced when trying to reach portable camp toilets in a distant, insecure area. “We are scared,” she said. “We have no security.”[97] Because of that, she sometimes avoided the camp toilets and instead defecated and changed menstrual materials in the open. As a result, she said that she chose the safety of staying near her tent over using the minimal sanitary facilities in the camps, even if that could contribute to vaginal infections.

Human Rights Watch received reports that in some temporary shelters in India a year after the 2004 tsunami, women and girls had resorted to walking in pairs to and from community toilet and bathing facilities to ward off harassment from men.[98] Likewise, women and girls in displacement camps in Haiti in 2010 and 2011 told Human Rights Watch about constant harassment they faced without secure bathing facilities. They described being pinched, poked, or leered at by boys and men in the displacement camps when they washed themselves out in the open, because there was no safe and private place to bathe.[99]

Men are regularly present near the women’s latrine at the Moria refugee camp, on Lesbos Island, Greece. Women described routine sexual harassment, particularly when going to and from or using the camp’s bathrooms. 

© 2016 Private

Women at “hotspot” centers in Greece in 2016 also described being sexually harassed routinely, especially when going to and from or using the camp sanitation facilities. A 23-year-old Syrian woman, who was alone with her three small children at the Moria camp, said that she did not go to the toilet at night because drunk men hang around the women’s latrine and had grabbed her hand and touched her shoulder in ways that made her feel uncomfortable.[100] Women also described a lack of privacy when using the showers. A 27-year-old Afghan widow with three children at the VIAL detention facility said, “The situation is very bad in the women’s showers. The showers don’t have curtains but you don’t have another choice. If other women are with me I feel comfortable.”[101]

In 2011 and 2012 Human Rights Watch found similar concerns about the absence of privacy in displacement camps in Sri Lanka. Soldiers and police would infringe on the privacy of women by watching them when they bathed or used the toilet.[102] Human Rights Watch uncovered one case in which this harassment resulted in sexual violence. A 28-year-old woman said, “One evening when I was returning after a bath with some others, suddenly a group of soldiers appeared. Some of the girls managed to scream and run away. I was raped.”[103]

Naima, a 70-year-old woman with a disability from Aleppo, Syria, with her daughter, Hasne, in front of the shower area in Cherso camp, Thessaloniki, Greece. The showers are not accessible for people who use a wheelchair. 

© 2016 Emina Cerimovic/Human Rights Watch

Persons with disabilities and older people may have even greater challenges in accessing sanitation in camps, especially when camp layout and terrain makes it difficult to move around. Even when camp sanitation facilities are constructed to be accessible for persons with disabilities and older people, uneven, rocky terrain and long distances to facilities may prevent persons with disabilities from using them, as Human Rights Watch found in camps in Greece in 2016 and 2017.[104] Fifteen asylum seekers and migrants with disabilitiesin Greece said that they or their family members were not able to use toilets and other hygiene facilities because they were not accessible.[105]

Older people with disabilities can face particular risks if access to sanitation is obstructed. Older men and women, in particular, face higher risks of urinary tract infections, that can be further aggravated by holding urine until support is available.[106] In 2016 in the Cherso refugee camp in Thessaloniki, Greece, Human Rights Watch came across Naima, a 70-year-old refugee woman from Aleppo, Syria. Because she had diabetes and used a wheelchair, she had difficulty accessing the toilet and wash area. Her daughter, Hasne, said:

It is very difficult to take my mother to the toilet. She crawls from the tent to the wheelchair – she can’t take one step. I put her in the wheelchair, I fill the bag with bottles that I use to help her wash her hands and take ablutions [the Islamic practice of washing before prayer] because she can’t reach the existing taps in camps from the wheelchair nor can she stand up.[107]

For many people with physical or sensory disabilities, the environment of the M’Poko camp for internally displaced people in Bangui, Central African Republic, is hard to navigate. The uneven terrain is speckled with holes and open drains. 

© 2015 Marcus Bleasdale for Human Rights Watch

In 2015 Human Rights Watch found in displaced persons camps in the Central African Republic that accessing latrines can be difficult as some are not fully accessible and often persons with physical disabilities have to crawl on the ground to enter. Jean, a man with a physical disability living in M’Poko camp, said:

My tricycle doesn’t fit inside the toilet so I have to get down on all fours and crawl. Initially I had gloves for my hands so I didn’t get any [feces] on them but now I have to use leaves.[108]

Detention Facilities

Migrants, refugees, and asylum seekers detained by authorities face many of the same challenges as detainees in prisons or jails. In addition to adults, unaccompanied children or families with children are often detained in abysmal conditions. A mother detained in Indonesia with her infant son in 2012 said, “When it rains and the water levels get high, the sewage comes up out of the toilets. It stays in the room. It’s very dirty. There are insects in the water anyway, but this is even dirtier.”[109]

Immigrants, including children, detained in Thailand described untenable long-term detention conditions. In 2013, one mother described conditions that she and her four daughters had experienced in detention—where there were only three toilets for approximately 100 detained migrants. Her teenage daughter would avoid using the toilets because they had no doors or privacy.[110] Another immigration detainee in Thailand, an American man, said that one of the two toilets available in his cell, occupied by around 80 people, was permanently clogged, so “someone had drilled a hole in the side—what would have gone down just drained onto the floor.”[111] He also described using the same fetid water to wash dishes after mealtimes:

After every meal you’d have to go into the bathroom to use the water and sponges there to clean your tray. If someone was in that toilet, there’d be shit in the water you’d wash your tray in… The sponges were on the floor, in the shit. That was the only way the trays were washed.[112]

An 8-year-old girl told Human Rights Watch, “The toilet was really bad, the smell was really bad.”[113] Even an immigration officer raised concerns about the toilet facilities, highlighting specifically his concern for girls: “The toilet needs to be improved, the cleaning. I see that it’s not really comfortable when they need to clean themselves. … I’m concerned for the girls, no privacy to wash.”[114]

A bathroom in one of the residential buildings in the Harmanli migration center, Bulgaria. The toilets had no doors and the windows had no glass. Temperatures were below freezing. 

© 2014 Human Rights Watch

Asylum seekers in Bulgaria faced similarly harsh conditions, in addition to physical abuse. The toilets in facilities were very dirty and inaccessible at night, and were usually insufficient for the number of detainees.[115] A Syrian man, 33, held at a Bulgarian border police detention facility in 2013, told Human Rights Watch about the conditions:

I told the police … I wanted to use the toilet. The guard said no, he would not let me use the toilet. After that I walked some distance outside the building to urinate, but the guard saw me and used his taser on me. He shocked me with it twice. First, when I was urinating and then to make me move faster.[116]

A 35-year-old Afghan mother of three children who, with her family, spent eight days in a “cage camp” for asylum seekers reported in 2013 witnessing guards use electric shock on people when they asked to go to the toilet.[117] Likewise, migrant workers who were detained as part of a mass expulsion from Saudi Arabia in 2013 told Human Rights Watch that there were vastly insufficient sanitation facilities for migrants at the detention facilities. One man said, “There were two toilets for 1,200 people, including dozens of children.”[118] Nur, a 24-year-old man from Mogadishu, Somalia, described the conditions he had experienced during his detention at a deportation center in Jeddah, Saudi Arabia: “There was no air conditioning, it was very hot. There were five toilets for all of us [just under 790 people].”[119]

In 2016 Human Rights Watch interviewed unaccompanied asylum-seeking and migrant children at the Mygdonia Border Guard Station in Thessaloniki, Greece, who said a broken shower drain was causing water to flood into the cell, where they slept on mattresses on the floor. Children said they used their own clothes to block the water.[120]

Poor sanitation facilities available to migrants, displaced people, or refugees can compound their health risks. For example, in an immigration detention facility in Greece, sewage was running on the floors when Human Rights Watch visited in 2011.[121] The guards told Human Rights Watch that the prisoners had broken the toilets to protest the conditions. The smell was so strong that guards wore surgical masks when they entered that area. A 14-year-old Afghan boy detained in the facility said, “The toilet is broken. The sewage comes out. There's a very bad smell. If a person comes here, 100 percent he will get sick.”[122]

Migrant and refugee women and girls in detention may experience additional difficulties in managing their menstruation. Women in several immigration detention facilities in the United States described arbitrary and humiliating limitations on access to sanitary pads. US government standards state that facilities will issue feminine-hygiene items on an as-needed basis. However, a number of women told Human Rights Watch in 2008 that officers would distribute a certain quantity of pads (two to six), and obtaining more “as needed” posed a challenge. Nadine recalled:

I needed three pads. It would just gush. It would end up soaking my clothes. If my clothing got soaked, I could go through a shift change without a change of clothing. ... We were shaken down every night. If you had hoarded they would take [away] the extra pads.[123]

Another woman, Elisa, said that the immigration detention facility she was in refused to give her more than two pads. “I had to just sit on the toilet for hours because I had nothing else [I could] do,” she said.[124] Nana, a woman at a detention facility in Arizona, described similar conditions:

They only give two pads. In the morning they come and give you two. If you need more than that you have to go to the nurse. “Why do you need more pads?” You have to tell her, “Because I bleed so much.” But it has to be an extraordinary reason. If it’s normal for you to have a heavy period—nothing. I bleed through three pairs of pants.[125]

An Afghan woman detained with her three children, ages 8 to 12, at a temporary holding facility in Ukraine told Human Rights Watch in 2009, “The border guards in Luts’k didn’t give sanitary pads. I used toilet papers; it wasn’t sufficient. I was one month without showering.”[126]

Risk of Harassment and Abuse

As with prisons, governments have heightened obligations to ensure that bathrooms in detention facilities are safe, yet they are often the site of sexual violence and harassment. For example, in 2005, immigration detainees at a facility in the United Stated reported that guards used a camera phone to take pictures of women detainees leaving the shower and the bathroom, and also while they were sleeping.[127] A 17-year-old Somali girl seeking asylum and detained in Ukraine reported in 2010 similar harassment, but by other detainees: “The boys and girls are in one place. … They [boys] tried to spy on me in the shower. There were up to six girls and 30 to 40 boys. We didn’t go to the toilet freely. They stood and smoked and we were scared. … I was afraid repeatedly.”[128]

A Somali refugee, 17, detained in 2008 at a Kenyan police station inside the refugee camps at Dadaab told Human Rights Watch that, after eight days of detention, police raped her when she left her cell to use the toilet: “I left the cell to go to the toilet but two policemen stopped me and told me to go into a room and lie down. One of the men held down my arms and the other raped me.”[129]

Accessing sanitation facilities in detention can also heighten the risk of harassment and abuse for transgender and gender non-conforming individuals, especially when privacy to use showers and toilets is lacking and facilities are overcrowded. In 2015, Human Rights Watch interviewed Talia, a transgender woman from Mexico being held in a US immigration detention facility in the state of Texas. Talia said a male detainee groped her buttocks and demanded oral sex during shower time, which she had to share with approximately 150 male detainees. After Talia reported the incident, she said a male guard escorted her to the restrooms so that she could shower at another time but that he would himself stare at her while she changed her clothes:

The guard stares at my breasts. I asked him to open the laundry room for me so that I can change my underwear and he said, “No.” I talked to the [ICE] supervisor and he told me I could change in the passageway in the bathroom, but there are men there. How can I change there? I might as well just change in my bed.[130]

Health Facilities and Residential Facilities for Persons with Disabilities

A toilet in Pune Mental Hospital, India. With only 25 working toilets for 1,850 patients, open defecation was the norm when Human Rights Watch visited in 2013 prior to renovations to its sanitation system. 

© 2013 Shantha Rau Barriga/Human Rights Watch

Residential facilities for persons with disabilities and health facilities often lack adequate sanitation facilities. Abusive practices in these institutions may make using or accessing the bathroom difficult. In psychiatric wards in Ghana in 2011, for example, Human Rights Watch researchers saw toilets filled with feces and cockroaches. From the gates of these wards, there was a powerful stench of urine and feces.[131] A 21-year-old man chained to a wall in one of these facilities told Human Rights Watch, “We shit here and they don’t come to clean up. … It smells a lot inside here.”[132] In another facility Human Rights Watch visited in Ghana, most persons with psychosocial disabilities were chained to trees, and they had to urinate in the open and defecate into small plastic bags which were later thrown into surrounding vegetation.[133] In so-called prayer camps visited by Human Rights Watch that also housed persons with psychosocial disabilities in an effort to “heal” them by prayer, many of the patients were also chained with only about two meters of chain for movement. People had to bathe, defecate, urinate, manage their menstrual hygiene, eat, and sleep in the spot where they were chained.[134]

At a hospital in India for women with psychosocial disabilities, a hospital superintendent told Human Rights Watch in 2013 that, with just 25 working toilets for more than 1,850 patients, “[o]pen defecation is the norm.”[135] In a setting where people are not always in control of their bowel movements, a lack of adequate toilets is especially distressing and poses a serious health risk, compounded by the fact that many women and girls in the hospital walk around barefoot.[136]

Human Rights Watch research in institutions for children with disabilities in Russia in 2012 and 2013 raised particular concerns. In one state-run facility, a volunteer staffer told Human Rights Watch:

The children [in the specialized state institution] don’t drink much. They get their diapers changed three times per day, but the staff can’t give them more diapers. So they limit the amount of water the children drink.[137]

In hospitals providing care to maternity patients, Human Rights Watch has found non-functional and unhygienic toilets in maternity and surgery recovery wards. In Kenya in 2010, for example, women recovering from fistula operations in a district hospital maternity ward said there were several toilets some distance away from the ward, but none could flush and some were overflowing with feces.[138]

Sometimes district hospitals had to absorb extra maternity patients because health facilities in more rural areas had no water and could not perform deliveries without it. Research carried out by WHO and UNICEF on healthcare facilities in 54 low and middle-income countries, representing 66,101 facilities, found that 19 percent did not have improved sanitation and 35 percent lacked soap and water for washing hands.[139] Such a lack of essential water, sanitation and hygiene (WASH) services in healthcare facilities led to serious consequences, including the spread of infections and even discouraging women from going to these healthcare facilities to give birth.[140]

Misuse of funds intended for health facilities may also lead to breakdowns in systems at an institutional level. For example, in 2007, Human Rights Watch looked at some of the human rights impacts—particularly on basic health care and primary education—of local government mismanagement and corruption in Nigeria’s oil-rich Rivers State. According to a high-ranking state official, out of the 30 health centers in the local government area, no more than two or three had any sort of toilet facilities, even pit latrines.[141] Human Rights Watch spoke to a health facility staff member who described the challenges they face due to a lack of resources: “We are lacking many things. We have beds but no mattresses[…]. We have no toilet; patients will use the toilets of the people who live nearby to here.”[142]

Workplaces

Adequate water and sanitation facilities in employment are necessary components of the right to safe and healthy working conditions.[143] Without access to safe drinking water, adequate sanitation facilities, and materials and information necessary to promote good hygiene, the right to health and safety at work cannot be fulfilled. The right to sanitation at the workplace is reflected in UN Resolution 70/169, which affirms that “the human right to sanitation entitles everyone, without discrimination, to have physical and affordable access to sanitation, in all spheres of life.”[144]

Harsh working conditions, long hours without breaks, or excessively high production quotas can make toilets inaccessible to workers, particularly in factories. Garment factory workers in Cambodia described to Human Rights Watch in 2013 the challenge of not being able to access the toilet when working long shifts.[145] Keu, a garment worker in Phnom Penh, said, “I sit for 11 hours and feel like my buttocks are on fire. We can’t go to the toilet.”[146] Cheng Thai, from a different factory, confirmed a similar experience: “We have to sit and work till we finish the quota. …They don’t allow the workers to take a break.…We cannot use the toilet even if we have diarrhea if we don’t get a toilet pass.”[147]

Garment workers in Bangladesh reported similar constraints in using the toilet facilities at their workplace. Workers interviewed by Human Rights Watch in 2013 said that they were verbally abused for using the toilet and thus avoided the toilet, as well as drinking anything during the day.[148] Sometimes this verbal abuse also had sexual overtones. One woman told Human Rights Watch, “We were not allowed to spend sufficient time in the toilet. If someone stays a long time in the toilet they use foul language like, ‘Did you go to toilet to make love?’”[149]

Agricultural workers are another class of workers that face difficulties in accessing sanitation. In the United States, for example, Human Rights Watch found in 2009 and 2010 that child agricultural laborers often do not have access to sufficient drinking water, and suitable handwashing facilities or toilets—potentially contributing to urinary tract infections, increased exposure to pesticides, and gastrointestinal disorders.[150] Tobacco workers risked nicotine poisoning.[151] One mother described the impact of not having portable toilets near the field where she and her 10-year-old son worked: “[He] had diarrhea one day behind the wheel [of the car] and we forgot toilet paper. He was trying to hide behind the wheel of the car.” [152]

Likewise, without access to toilets, most children Human Rights Watch interviewed who worked in tobacco fields in the United States said that they would relieve themselves in wooded areas near their worksite or refrain from relieving themselves at all during the day—aided by avoiding drinking liquids, which increased their risk of dehydration and heat illness. A 17-year-old girl, who had worked on tobacco farms in North Carolina since age 12, said, “If you have to go, there’s the woods. … First time I was out in the field, I told my mom I have to go pee. And my mom was like, ‘You have to go in the woods.’ But I was scared. I didn’t want to. My mom said, ‘You can’t go all day like that.’ I said, ‘What if a snake comes out?’”[153] Another 16-year-old girl worker in North Carolina explained, “You’d have to just get yourself somewhere to go to the bathroom. To the trees, or just try to get away from the others working, have someone else help cover you up.”[154]

Farmworkers in South Africa reported to Human Rights Watch in 2010 that farmers often do not provide toilets near fields, forcing farmworkers to relieve themselves in or near the vineyard or orchard where they work. A seasonal farmworker said, “When working in the field, there is no toilet near the field. So dig a hole and help yourself.”[155]

Human Rights Watch found that in situations where workers stay in employer-provided housing, the sanitation facilities may be inadequate. Thai farmworkers in Israel went on strike in 2013 to protest poor living conditions, including lack of functioning toilets and showers.[156]

Similarly, migrant construction workers in Beijing told Human Rights Watch in 2007 that the toilets and washing facilities on-site were severely inadequate and, in some cases, dangerously unhygienic. Many lacked running water.[157]

Lack of gender segregated and safe toilets can be a barrier to women’s employment. In Afghanistan, a senior police administrator acknowledged to Human Rights Watch in 2012 that the lack of safe toilets and changing facilities might be barriers to women joining the police force—which in turn had a significant impact on how police respond to crimes against women and girls.[158]

An international advisor working closely with female Afghan police officers told Human Rights Watch that “[t]oilets are a site of harassment.”[159] Unsafe toilets and changing areas opened Afghan police women up to sexual harassment and assault. According to the advisor, “Those facilities that women do have access to often have peepholes or doors which don’t lock. Women have to go [to the toilets] in pairs.”[160]

Lack of privacy for sanitation facilities may also expose transgender or gender non-conforming people to harassment or violence. Alina, a transgender woman in Ukraine, told Human Rights Watch in 2014 that on one occasion, an employer discovered her identity as transgender because he observed her urinating. He subsequently sexually harassed her, leading her to quit her job.[161]

Households

Human Rights Watch research found a number of instances where poor household sanitation was linked to failures on the part of the authorities.

For example, in Harare, Zimbabwe, Human Rights Watch found in 2012 and 2013 that many people interviewed had indoor flush toilets—yet their systems were non-functional.[162] Almost no water came through the piped system, so people reported having to rely on alternative water sources to flush their toilets. When water access was very limited, many residents said that they defecate outdoors. When there was water, they said they would flush their toilets, but that the sewage pipes were often bursting, sewage at times came up from the toilet, and raw sewage flowing on the street was not uncommon.[163]

Even where sewage systems exist, and ostensibly function, households may still be excluded from connecting to them. Such exclusion may reflect broader discrimination or exclusion. For example, Human Rights Watch research in 2014 on violence in a majority Afro-Colombian city in Colombia raised concerns that high poverty rates and limited access to basic services created an environment for armed groups to thrive. Community members pointed to poor public services as an example of this socioeconomic exclusion. Just 0.3 percent of households in the city were connected to a sewage system, compared with 72 percent of Colombian households nationwide.[164] Such disparities in sewage connection between this city and the broader Colombian population may be indicative of unequal state investment.

As in other contexts, women and girls may face risks of violence when they lack safe and private household sanitation facilities. Women and girls living in areas of conflict may be at even greater risks when using the bathroom. A survivor of conflict-era sexual violence in Nepal described to Human Rights Watch in 2013 how a neighbor who had joined the rebel Maoist forces laid waiting for her outside a friend’s house as she went to the toilet one evening:

He grabbed me and dragged me to the fields. He was alone. He put his hand on my mouth so I could not shout. He raped me. … He kept me there for nearly two hours.[165]

Sewage removal and wastewater treatment is a major challenge for communities around the world, including in high-resource countries. It can contribute to water pollution and illness. Human Rights Watch research in First Nations in Canada in 2016 found that the inability to treat its sewage led one community to declare a state of crisis. According to its declaration:

Leakage [of septic fields] and frequent pump-outs are an ever-increasing problem. Both create health concerns, not to mention the smell…septic fields are leaking into [the community’s] nearby untreated drinking water source. … Our community has a pumper truck but we do not have a secure place to dump sewage or a secure way to get there. … In response to all these challenges and costs, consideration has been given to dumping on the man-made island. Result: Sewage disposal presents a health risk.[166]

In August 2015, the community’s chief told Human Rights Watch that the truck that pumped out septic tanks had “nowhere to take” the sewage and was “dumping it on the island … which can get into our water source that our kids bathe in.”[167] The community’s drinking water came directly from the surface water surrounding the island and the water operator in the community lamented, “At some point [the raw sewage] will reach the water.”[168]

The impact on individuals and communities where household sanitation is poor can extend beyond health or environmental harms. Sanitation workers who operate to fill the gaps in waste management may be exposed to harmful practices. So-called manual scavenging—the manual cleaning of excrement from private and public dry toilets and open drains—is a particularly horrific and stigmatizing practice that persists in parts of India and elsewhere in South Asia. Under centuries-old feudal and caste-based customs, women from communities that traditionally work as “manual scavengers” collect human waste from households with unimproved toilets on a daily basis, load it into cane baskets or metal troughs, and carry it away on their heads for disposal at the outskirts of the settlement. Human Rights Watch has documented the persistent health problems and assault on the dignity of people forced to engage in this practice, and the difficulties they face in trying to extricate themselves from this work.[169]

A Dalit woman enters a home in Uttar Pradesh, India, through a back entrance to remove excrement from dry toilets. 

© 2014 Digvijay Singh

The rights abuses suffered by people who practice manual scavenging are mutually reinforcing. Constantly handling human excreta without protection can have severe health consequences. Those who do the work, however, also typically face “untouchability” practices. Discrimination that extends to all facets of their lives, including access to education for their children, makes it more likely they will have no choice but to continue to work as manual scavengers. Sona, from Bharatpur city in Rajasthan, India, described to Human Rights Watch in 2014 her first day of work and why she had no choice but to continue:

The first day when I was cleaning the latrines and the drain, my foot slipped and my leg sank in the excrement up to my calf. I screamed and ran away. Then I came home and cried and cried. My husband went with me the next day and made me do it. I knew there was only this work for me.[170]

Conclusion

States and donors working toward commitments made under Goal 6 of the 2030 Agenda for Sustainable Development should not stop at new resources alone. Efforts to address global sanitation and wastewater challenges should recognize the human right to sanitation, entitling everyone to sanitation services that provide privacy and ensure dignity, and that are physically accessible, affordable, safe, hygienic, secure, and socially and culturally acceptable.

To do so, governments at all levels and donors should address the contexts discussed in this report.

Plans and commitments should take into consideration public facilities, particularly those directly under government control or regulation. While using the bathroom is a deeply private affair, poor sanitation is not—it’s both an individual right and a public health and environmental concern. Human feces and wastewater can expose people to disease and pollute ecosystems and waterways. Human Rights Watch’s research puts into perspective the need for sanitation taking place in a public facility or sphere. It also demonstrates how poorly equipped states are in many instances to address sanitation in these contexts. For citizens to fully realize the right to sanitation, governments should directly provide sanitation services in facilities under their control and create the enabling environment for public facilities outside of their direct control, through regulations, enforcement, and funding.

Discrimination and inequality in access to sanitation can play a significant role in determining whether or not a person is able to realize their right to sanitation. It can also undermine investments governments and donors make to reach universal access to sanitation. Human Rights Watch research highlights discrimination in access to sanitation that occurs on the basis of gender and gender identity, disability, and caste or race in almost every context. Discrimination in access may actually serve to perpetuate other forms of inequality for marginalized populations. For example, women and girls need access to adequate sanitation in order to manage their hygiene during menstruation. When women and girls face discrimination in access to safe and private sanitation facilities and the material resources to manage their menstruation, their ability to realize other rights—including to education, health, work, and gender equality—may be undermined.

International human rights law addresses governments’ obligations related to sanitation. In 2009 the UN Human Rights Council passed a resolution recognizing that states have an obligation to address and eliminate discrimination with regard to access to sanitation, urging them to address effectively inequalities related to sanitation and calling on them to, among other affirmative steps, “adopt a gender-sensitive approach to all relevant policymaking in light of the special sanitation needs of women and girls.”[171] This should be considered in response to all populations at risk of discrimination in access to sanitation.

Eliminating discrimination in access to sanitation facilities requires that these facilities be safe and private. Human Rights Watch research reinforces common knowledge that toilets, open defecation fields, and bathing facilities can be the site of sexual violence and harassment, particularly against women, girls, and transgender people. Governments should ensure access to sanitation that is safe, secure, socially and culturally acceptable, and that provides privacy and ensures dignity. When women and girls are subject to rape or harassment simply for seeking to use a restroom, it is a sign that governments are failing in their obligations.

Lastly, states and donors cannot meaningfully pursue Sustainable Development Goal 6 or the realization of the right to sanitation without understanding the interdependence of access to sanitation with other human rights. Poor or no access to sanitation often occurs in the context of other human rights violations, and compounds their effects. Many of the dire situations detailed in the report happened within the context of arbitrary detention or other forms of deprivation of liberty, where people are already vulnerable to human rights violations and often lack recourse for poor conditions or other abuses. In other instances, lack of sanitation or wastewater management can contribute to water pollution that makes the right to safe drinking water less obtainable. Lack of sanitation facilities in schools can make already challenging educational environments even more difficult for adolescent girls. These compounding impacts of poor sanitation cannot be ignored by states and donors supporting them.

Acknowledgements

This report was written by Amanda Klasing, senior researcher and advocate in the women’s rights division, and Annerieke Smaak, senior coordinator in the women’s rights division. Richard Pearshouse, senior researcher in the health and human rights division, Bede Sheppard, Elin Martinez, Michael Bochenek, and Margaret Wurth of the children’s rights division, and Shantha Rau Barriga, director of the disability rights program, reviewed the report. James Ross, legal and policy director, and Tom Porteous, deputy program director, provided legal and program review respectively.

Olivia Hunter, publications and photography associate, Fitzroy Hepkins, administrative manager, and Jose Martinez, senior coordinator, provided production assistance.

Human Rights Watch wishes to especially thank Inga Winkler of the Institute for the Study of Human Rights at Columbia University and Hannah Neumeyer of WASH United for their time and assistance in reviewing an earlier draft of this report.

We also wish to thank all those who shared their personal stories related to the very private issue of sanitation with Human Rights Watch researchers over the years.

[1] Human Rights Watch, “We Are Still Here”: Women on the Front Lines of Syria’s Conflict, July 2014, https://www.hrw.org/report/2014/07/02/we-are-still-here/women-front-lines-syrias-conflict, p. 12.

[2] United Nations, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, July 1, 2009, UN Doc. A/HRC/12/24, http://www.ohchr.org/Documents/Press/IE_2009_report.pdf (accessed March 27, 2017) para. 55.

[3] Ibid.

[4] WHO/UNICEF Joint Monitoring Program for Water Supply and Sanitation, Progress on Sanitation and Drinking Water, 2015 Update and MDG Assessment, https://www.wssinfo.org/fileadmin/user_upload/resources/JMP-Update-repor... (accessed February 8, 2017), p. 13. In order to monitor progress toward the Millennium Development Goals (MDGs), “an improved sanitation facility is defined as one that hygienically separates human excreta from human contact.” See WHO/UNICEF Joint Monitoring Program for Water Supply and Sanitation, “Introduction-Improved sanitation facilities,” undated, https://www.wssinfo.org/definitions-methods/ (accessed February 8, 2017).

[5] UNICEF, “Without toilets, childhood is even riskier due to malnutrition,” November 19, 2015, https://www.unicef.org/media/media_86283.html (accessed March 15, 2017).

[6] The right to sanitation does not depend solely on access to improved sanitation facilities; having access to a toilet does not ensure the right is fulfilled. The totality of the right to sanitation is defined in UN General Assembly Resolution 70/169 which entitles “everyone, without discrimination, to have physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, socially and culturally acceptable and that provides privacy and ensures dignity.” UN General Assembly, “The human rights to safe drinking water and sanitation,” Resolution 70/169, A/RES/70/169, para. 2. 

[7] UN, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, July 1, 2009, UN Doc. A/HRC/12/24, para. 62.

[8] International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976. The ICESCR has been ratified by 165 countries. See, for example, UN General Assembly, “The human right to safe drinking water and sanitation,” Resolution 68/157, U.N. Doc. A/Res/68/157* (2013).

[9] UN Committee on Economic, Social and Cultural Rights, Statement on the Right to Sanitation, Forty-fifth session, E/C.12/2010/1, para. 7.

[10] UN General Assembly, “The human rights to safe drinking water and sanitation,” Resolution 70/169, A/RES/70/169, para. 2. Emphasis added.

[11] According to the 2014 GLAAS report, “Substantially more WASH [water, sanitation and hygiene] funding is directed to water provision, despite sanitation needs being greater.” World Health Organization and UN Water, “Investing in Water and Sanitation: Increasing access, reducing inequalities,” UN-Water Global Analysis and Assessment of Sanitation and Drinking Water Report, 2014, http://apps.who.int/iris/bitstream/10665/139735/1/9789241508087_eng.pdf?ua=1 (accessed February 2, 2017) p. 23.

[12] UNICEF and World Health Organization, Progress on Sanitation and Drinking Water: 2015 Update and MDG Assessment, 2015, http://apps.who.int/iris/bitstream/10665/177752/1/9789241509145_eng.pdf (accessed February 1, 2017). See also, UNICEF, “Millennium Development Goals (MDG) monitoring,” undated, https://www.unicef.org/statistics/index_24304.html (accessed February 8, 2017). Millennium Development Goal 7, Target C to “halve, by 2015, the proportion of people without sustainable access to safe drinking water and basic sanitation” is measured by access to improved drinking water sources and improved sanitation facilities. However, access to improved drinking water sources and improved sanitation facilities (as measured by the MDGs) does not ensure that the totality of the rights to water and sanitation are formally met. 

[13] UNICEF and World Health Organization, Progress on Sanitation and Drinking Water: 2015 Update and MDG Assessment, p. 90.

[14] In 2009, the UN Special Rapporteur on the human right to safe drinking water and sanitation analyzed the human rights obligations related to access to sanitation and concluded that the infringement of the lack of sanitation on the very core of human dignity requires states to consider sanitation in its own right, and not only as it relates to other human rights. The UN Committee on Economic, Social and Cultural Rights noted that, “sanitation has distinct features which warrant its separate treatment from water in some respects,” pointing out that increasingly, solutions for sanitation do not require water.  See UN, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, July 1, 2009, UN Doc. A/HRC/12/24. See also, UN Committee on Economic, Social and Cultural Rights, Statement on the Right to Sanitation, U.N. Doc. E/C.12/2010/1 (2010).

[15] UN, Sustainable Development Knowledge Platform, “Sustainable Development Goal 6,” undated, https://sustainabledevelopment.un.org/sdg6 (accessed February 8, 2017). Goal 6 of ensuring availability and sustainable management of water and sanitation for all is a step towards the realization of the right to sanitation, and targets for meeting the goal do include some important aspects enshrined in the right to sanitation, such as ending open defecation. However, Goal 6 does not encompass or measure the totality of the full right to sanitation as defined in UN General Assembly Resolution 70/169.

[16] Ibid.

[17] UN, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Common violations of the human rights to water and sanitation, June 30, 2014, UN Doc A/HRC/27/55.

[18] The violations documented in this report are limited to a compilation of Human Rights Watch research and do not constitute the full scope of violations of the right to sanitation. For other violations related to the right to sanitation, see United Nations, Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Common violations of the human rights to water and sanitation, June 30, 2014, UN Doc A/HRC/27/55.

[19] A systematic review of public health studies has shown that access to safe drinking water and clean, private toilets has the potential to beneficially impact children’s health, which in turn would increase school attendance. See Christian Jasper, Thanh-Tam Le and Jamie Bartram, “Water and Sanitation in Schools: A systematic review of the health and educational outcomes,” International Journal of Environmental Research and Public Health, vol. 9, no. 8, August 3, 2012, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3447586/ (accessed February 7, 2017) pp. 2772–2787. Incidents of diarrheal disease can be reduced by 30 percent when children and staff at primary schools wash hands properly, according to one study. See Ejemot, R. Regina I., et al., “Hand Washing for Preventing Diarrhea,” Cochrane Database of Systematic Reviews, no. 3, article no. CD004265, 2009, http://www.childsurvival.net/?content=com_articles&artid=498&alert=yes (accessed February 7, 2017) pp. 1–44.

[20] World Health Organization, Global Health Risks: Mortality and burden of disease attributable to selected major risks, 2000, http://www.who.int/healthinfo/global_burden_disease/GlobalHealthRisks_report_part2.pdf?ua=1, (accessed February 2, 2017) p. 23.

[21] Human Rights Watch, Sabotaged Schooling: Naxalite Attacks and Police Occupation of Schools in India’s Bihar and Jharkhand States, December 2009, https://www.hrw.org/report/2009/12/09/sabotaged-schooling/naxalite-attacks-and-police-occupation-schools-indias-bihar.

[22] Human Rights Watch, Sabotaged Schooling: Naxalite Attacks and Police Occupation of Schools in India’s Bihar and Jharkhand States, p. 29.

[23] Human Rights Watch, Sabotaged Schooling: Naxalite Attacks and Police Occupation of Schools in India’s Bihar and Jharkhand States, p. 86.

[24] Ibid. 

[25] Human Rights Watch, “They Say We’re Dirty”: Denying an Education to India’s Marginalized, April 2014, https://www.hrw.org/report/2014/04/22/they-say-were-dirty/denying-education-indias-marginalized, p. 21.

[26] Human Rights Watch, “They Say We’re Dirty”: Denying an Education to India’s Marginalized, p. 37.

[27] Human Rights Watch, “They Say We’re Dirty”: Denying an Education to India’s Marginalized, p. 23.

[28] Human Rights Watch, Growing Up Without an Education: Barriers to Education for Syrian Refugee Children in Lebanon, July 2016, https://www.hrw.org/sites/default/files/report_pdf/lebanon0716web_1.pdf, p. 58.

[29] Ibid.

[30] Ibid.

[31] Human Rights Watch, Futures Stolen: Barriers to Education for Children with Disabilities in Nepal, August 2011, http://www.hrw.org/sites/default/files/reports/nepal0811ForWebUpload.pdf, p. 1.

[32] Human Rights Watch, Futures Stolen: Barriers to Education for Children with Disabilities in Nepal, p. 43.

[33] Human Rights Watch, “Complicit in Exclusion”: South Africa’s Failure to Guarantee an Inclusive Education for Children with Disabilities, August 2015, https://www.hrw.org/report/2015/08/18/complicit-exclusion/south-africas-failure-guarantee-inclusive-education-children, p. 45.

[34] Human Rights Watch, “As Long as They Let Us Stay in Class”: Barriers to Education for Persons with Disabilities in China, July 2013, http://www.hrw.org/sites/default/files/reports/china0713_ForUpload.pdf, pp. 26-27.

[35] Ibid. 

[36] Human Rights Watch, “As Long as They Let Us Stay in Class”: Barriers to Education for Persons with Disabilities in China, p. 39.

[37] Human Rights Watch, “Complicit in Exclusion”: South Africa’s Failure to Guarantee an Inclusive Education for Children with Disabilities, p. 42.

[38] Human Rights Watch, “Complicit in Exclusion”: South Africa’s Failure to Guarantee an Inclusive Education for Children with Disabilities, p. 42.

[39] Human Rights Watch, “Complicit in Exclusion”: South Africa’s Failure to Guarantee an Inclusive Education for Children with Disabilities, p. 52.

[40] Written Statement of Amanda Klasing, Tom Lantos Human Rights Commission of the United States Congress Hearing on “Aid Delivery in Haiti: Development Needs, Capacity Building and Challenges,” December 3, 2014, https://www.hrw.org/news/2014/12/03/written-statement-amanda-klasing-womens-rights-researcher-tom-lantos-human-rights.

[41] Written Statement of Amanda Klasing, Tom Lantos Human Rights Commission of the United States Congress Hearing on “Aid Delivery in Haiti: Development Needs, Capacity Building and Challenges.”

[42] Human Rights Watch, “Our Time to Sing and Play”: Child Marriage in Nepal, September 2016, https://www.hrw.org/sites/default/files/report_pdf/nepal0816_web.pdf, p. 37.

[43] Human Rights Watch, “I Had a Dream to Finish School”: Barriers to Secondary Education in Tanzania, February 2017, https://www.hrw.org/sites/default/files/report_pdf/tanzania0217_web.pdf, p. 79.

[44] Human Rights Watch, Futures Stolen: Barriers to Education for Children with Disabilities in Nepal, p. 37.

[45] Ibid.

[46] Ibid. 

[47] Human Rights Watch, “I’m Scared to Be a Woman”: Human Rights Abuses Against Transgender People in Malaysia, September 2014, https://www.hrw.org/sites/default/files/reports/malaysia0914_ForUpload.pdf, p. 53.

[48] Human Rights Watch, “Like Walking through a Hailstorm”: Discrimination against LGBT Youth in US Schools, December 2016, https://www.hrw.org/sites/default/files/report_pdf/uslgbt1216web_2.pdf, p. 76.

[49] Human Rights Watch, Shut Out: Restrictions on Bathroom and Locker Room Access for Transgender Youth in US Schools, September 2016, https://www.hrw.org/sites/default/files/report_pdf/uslgbttrans0916_web.pdf, p. 10.

[50] Human Rights Watch, Shut Out: Restrictions on Bathroom and Locker Room Access for Transgender Youth in US Schools, p. 10.

[51] Human Rights Watch, Shut Out: Restrictions on Bathroom and Locker Room Access for Transgender Youth in US Schools, p. 10.

[52] Human Rights Watch, Shut Out: Restrictions on Bathroom and Locker Room Access for Transgender Youth in US Schools, p. 10.

[53] UN Committee on Economic, Social and Cultural Rights, General Comment No. 15, The Right to Water, U.N. Doc. E/C.12/2002/11 (2003), para. 16(g), citing Third Geneva Convention, arts. 20, 26, 29, and 46; Fourth Geneva Convention, arts. 85, 89, and 127; and UN Economic and Social Council, United Nations Standard Minimum Rules for the Treatment of Prisoners (the “Mandela Rules”), A/C.3/70/L.3, Resolution 2015/20, http://www.un.org/ga/search/view_doc.asp?
symbol=A/C.3/70/L.3
(accessed March 27, 2017) rules 15 and 20, para. 2. See also, United Nations Rules for the Protection of Juveniles Deprived of their Liberty, arts. 34 and 37.

[54] Human Rights Watch, “Where Do You Want Us to Go?”: Abuses against Street Children in Uganda, July 2014, http://www.hrw.org/sites/default/files/reports/uganda0714_forinsert_ForUpload.pdf, p. 34.

[55] Human Rights Watch, Unjust and Unhealthy: HIV, TB, and Abuse in Zambian Prisons, April 2010, http://www.hrw.org/sites/default/files/reports/zambia0410webwcover.pdf, p. 40.

[56] Human Rights Watch, 2013 World Report, Haiti Chapter, http://www.hrw.org/world-report/2013/country-chapters/haiti?page=2.

[57] Human Rights Watch, 2013 World Report, Haiti Chapter. See also, notes from August 2012 visits to Mirabelais and St. Marc prisons, on file with Human Rights Watch.

[58] Human Rights Watch, Insult to Injury: The 2014 Lamu and Tana River Attacks and Kenya’s Abusive Response, June 2015, http://www.hrw.org/reports/2015/06/15/insult-injury, p. 11.

[59] Ibid.

[60] Human Rights Watch, “We Will Teach You a Lesson”: Sexual Violence against Tamils by Sri Lankan Security Forces, February 2013, http://www.hrw.org/sites/default/files/reports/srilanka0213webwcover_0.pdf, p. 74.

[61] Human Rights Watch, Unjust and Unhealthy: HIV, TB, and Abuse in Zambian Prisons, p. 40.

[62] UN, Mandela Rules, rule 15.

[63] UN, Mandela Rules, rule 18(1).

[64] Human Rights Watch, Unjust and Unhealthy: HIV, TB, and Abuse in Zambian Prisons, p. 42.

[65] Ibid.

[66] Human Rights Watch, Unjust and Unhealthy: HIV, TB, and Abuse in Zambian Prisons, p. 40.

[67] Human Rights Watch, Old Behind Bars: The Aging Prison Population in the United States, January 2012, https://www.hrw.org/sites/default/files/reports/usprisons0112webwcover_0.pdf, p. 47.

[68] Human Rights Watch, Rehabilitation Required: Russia’s Human Rights Obligation to Provide Evidence-based Drug Dependence Treatment, November 2007, http://www.hrw.org/sites/default/files/reports/russia1107webwcover.pdf, pp. 85-86.

[69] Human Rights Watch, Somsanga’s Secrets: Arbitrary Detention, Physical Abuse, and Suicide inside a Lao Drug Detention Center, October 2011, https://www.hrw.org/report/2011/10/11/somsangas-secrets/arbitrary-detention-physical-abuse-and-suicide-inside-lao-drug, p. 39.

[70] Human Rights Watch, The Rehab Archipelago: Forced Labor and Other Abuses in Drug Detention Centers in Southern Vietnam, September 2011, http://www.hrw.org/sites/default/files/reports/vietnam0911ToPost.pdf, p. 64.

[71] Human Rights Watch, Shattering Hopes: Post-Election Crackdown in Belarus, March 2011, https://www.hrw.org/report/2011/03/14/shattering-hopes/post-election-crackdown-belarus, pp. 18-19.

[72] Ibid.

[73] Human Rights Watch, “A Long Way from Reconciliation”: Abusive Crackdown in Response to Security Threats in Cote d’Ivoire, November 2012, http://www.hrw.org/sites/default/files/reports/cotedivoire1112webwcover.pdf, p. 33.

[74] Human Rights Watch, Unjust and Unhealthy: HIV, TB, and Abuse in Zambian Prisons, p. 42.

[75] Human Rights Watch, Somsanga’s Secrets: Arbitrary Detention, Physical Abuse, and Suicide inside a Lao Drug Detention Center, p. 45.

[76] Human Rights Watch, “They Want a Confession”: Torture and Ill-Treatment in Ethiopia’s Maekelawi Police Station, October 2013, http://www.hrw.org/sites/default/files/reports/ethiopia1013_ForUpload.pdf, p. 36. 

[77] Human Rights Watch, “They Want a Confession”: Torture and Ill-Treatment in Ethiopia’s Maekelawi Police Station, p. 32.

[78] Human Rights Watch, “We Will Teach You a Lesson”: Sexual Violence against Tamils by Sri Lankan Security Forces, February 2013, http://www.hrw.org/sites/default/files/reports/srilanka0213webwcover_0.pdf, p. 138.

[79] Human Rights Watch, Tiger Chairs and Cell Bosses: Police Torture of Criminal Suspects in China, May 2015, http://www.hrw.org/node/134840/section/1, p. 6. 

[80] Ibid. 

[81] “Bahrain: Allegations of Severe Prisoner Abuse,” Human Rights Watch news release, May 6, 2015, https://www.hrw.org/news/2015/05/06/bahrain-allegations-severe-prisoner-abuse.

[82] Human Rights Watch, “Why Not Call This Place a Prison?” Unlawful Detention and Ill-Treatment in Rwanda’s Gikondo Transit Center, September 2015, https://www.hrw.org/sites/default/files/report_pdf/rwanda0915_4up.pdf, p. 20. The majority of beatings reported to Human Rights Watch were carried out by other prisoners who have spent long periods of time at Gikondo, called “counselors.” Each room is managed by a “counselor” chosen by the police; the “counselors” appoint deputies to help them manage other detainees and are given de facto authority by the police to ill-treat other detainees.

[83] Human Rights Watch, At Your Own Risk: Reprisals against Critics of World Bank Group Projects, June 2015, https://www.hrw.org/report/2015/06/22/your-own-risk/reprisals-against-critics-world-bank-group-projects, p. 110.

[84] Ibid.

[85] Ibid. 

[86] See, for example, UN Committee on Economic, Social and Cultural Rights, General Comment No. 15, The Right to Water, U.N. Doc. E/C.12/2002/11 (2003), para. 16(f). See also, UN Guiding Principles on Internal Displacement, principle 18; and ILO Recommendation No. 115 of 1961 on Workers’ Housing, Suggestions concerning methods of application, nos. 7 and 8.

[87] Human Rights Watch, Isolated in Yunnan: Kachin Refugees from Burma in China’s Yunnan Province, June 2012, http://www.hrw.org/sites/default/files/reports/china0612_forinsertForUpload_0.pdf, pp. 44-45.

[88] “France: Migrants, Asylum Seekers Abused and Destitute,” Human Rights Watch news release, January 20, 2015, http://www.hrw.org/news/2015/01/20/france-migrants-asylum-seekers-abused-and-destitute.

[89] Ibid.

[90] “Greece: Refugee ‘Hotspots’ Unsafe, Unsanitary,” Human Rights Watch news release, May 19, 2016, https://www.hrw.org/news/2016/05/19/greece-refugee-hotspots-unsafe-unsanitary.

[91] Ibid.

[92] Human Rights Watch, Besieged, Displaced, and Detained: The Plight of Civilians in Sri Lanka’s Vanni Region, December 2008, http://www.hrw.org/sites/default/files/reports/srilanka1208webwcover.pdf, pp. 31-32.

[93] Ibid.

[94] Water Supply & Sanitation Collaborative Council and Sanitation and Hygiene Applied Research for Equity, Coping Strategies to Deal with Inadequate WASH Facilities and Related Health Risks, October 2014, http://www.shareresearch.org/LocalResources/Coping_Strategies.pdf (accessed April 11, 2017) p.2, finding that among women in their study who practice open defecation, 36 percent reported fear of accidents, injury, snake bites, or animal attacks.

[95] Human Rights Watch, After the Deluge: India’s Reconstruction Following the 2004 Tsunami, May 2005, https://www.hrw.org/reports/2005/india0505/india0505.pdf, p. 17.

[96] Written Statement of Amanda Klasing, Tom Lantos Human Rights Commission of the United States Congress Hearing on “Aid Delivery in Haiti: Development Needs, Capacity Building and Challenges.”

[97] Amanda Klasing, “Menstrual Hygiene Day Links Periods and Human Rights,” WENews, May 28, 2014, http://womensenews.org/story/reproductive-health/140527/menstrual-hygiene-day-links-periods-and-human-rights (accessed April 10, 2017).

[98] Human Rights Watch, After the Deluge: India’s Reconstruction Following the 2004 Tsunami, p. 17.

[99] Written Statement of Amanda Klasing, Tom Lantos Human Rights Commission of the United States Congress Hearing on “Aid Delivery in Haiti: Development Needs, Capacity Building and Challenges.” See also, Human Rights Watch, “Nobody Remembers Me”: Failure to Protect Women’s and Girls’ Right to Health and Security in Post Earthquake Haiti, August 2011, http://www.hrw.org/sites/default/files/reports/haiti0811webwcover_0.pdf, p. 68.

[100] “Greece: Refugee ‘Hotspots’ Unsafe, Unsanitary,” Human Rights Watch new release.

[101] Ibid.

[102] Human Rights Watch, “We Will Teach You a Lesson”: Sexual Violence against Tamils by Sri Lankan Security Forces, p. 37.

[103] Ibid.

[104] “Greece: Refugees with Disabilities Overlooked, Underserved,” Human Rights Watch news release, January 18, 2017, https://www.hrw.org/news/2017/01/18/greece-refugees-disabilities-overlooked-underserved.

[105] Ibid.

[106] “Gender and Age-Dependent Etiology of Community-Acquired Urinary Tract Infections,” The Scientific World Journal Volume 2012 (2012) 349597, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3351074/ (accessed March 7, 2017).

[107] “Greece: Refugees with Disabilities Overlooked, Underserved,” Human Rights Watch news release.

[108] “Central African Republic: People with Disabilities Left Behind,” Human Rights Watch news release, April 28, 2015, http://www.hrw.org/news/2015/04/28/central-african-republic-people-disabilities-left-behind-0

[109] Human Rights Watch, Barely Surviving: Detention, Abuse, and Neglect of Migrant Children in Indonesia, June 2013, http://www.hrw.org/sites/default/files/reports/indonesia0613webwcover.pdf, p. 56.

[110] Human Rights Watch, Two Years with No Moon: Immigration Detention of Children in Thailand, p. 2.

[111] Human Rights Watch, Two Years with No Moon: Immigration Detention of Children in Thailand, p. 3.

[112] Human Rights Watch, Two Years with No Moon: Immigration Detention of Children in Thailand, p. 47.

[113] Ibid. 

[114] Human Rights Watch, Two Years with No Moon: Immigration Detention of Children in Thailand, p. 51.

[115] Human Rights Watch, “Containment Plan”: Bulgaria’s Pushbacks and Detention of Syrian and Other Asylum Seekers and Migrants, April 2014, http://www.hrw.org/sites/default/files/reports/bulgaria0414_ForUpload_0_0.pdf, pp. 38, 52.

[116] Human Rights Watch, “Containment Plan”: Bulgaria’s Pushbacks and Detention of Syrian and Other Asylum Seekers and Migrants, p. 34.

[117] Human Rights Watch, “Containment Plan”: Bulgaria’s Pushbacks and Detention of Syrian and Other Asylum Seekers and Migrants, p. 36.

[118] Human Rights Watch, Detained, Beaten, Deported: Saudi Abuses against Migrants during Mass Expulsions, May 2015, https://www.hrw.org/report/2015/05/10/detained-beaten-deported/saudi-abuses-against-migrants-during-mass-expulsions.

[119] Human Rights Watch, Detained, Beaten, Deported: Saudi Abuses against Migrants during Mass Expulsions.

[120] Human Rights Watch, “Why Are You Keeping Me Here?” Unaccompanied Children Detained in Greece, September 2016, https://www.hrw.org/report/2016/09/08/why-are-you-keeping-me-here/unaccompanied-children-detained-greece, p. 16.

[121] Human Rights Watch, The EU’s Dirty Hands: Frontex Involvement in Ill-Treatment of Migrant Detainees in Greece, September 2011, http://www.hrw.org/sites/default/files/reports/greece0911webwcover_0.pdf, p. 29.

[122] Human Rights Watch, The EU’s Dirty Hands: Frontex Involvement in Ill-Treatment of Migrant Detainees in Greece, p. 29.

[123] Human Rights Watch, Detained and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration Detention, March 2009, http://www.hrw.org/sites/default/files/reports/wrd0309web_1.pdf, pp. 48-50.

[124] Human Rights Watch, Detained and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration Detention, p. 49.

[125] Ibid. 

[126] Human Rights Watch, Buffeted in the Borderland: The Treatment of Migrants and Asylum Seekers in Ukraine, December 2010, http://www.hrw.org/sites/default/files/reports/ukraine1210WebVersion.pdf, p. 79.              

[127] Human Rights Watch, Detained and at Risk: Sexual Abuse and Harassment in United States Detention, August 2010, http://www.hrw.org/sites/default/files/reports/us0810webwcover.pdf, p. 13, citing Office of Inspector General, DHS, “Treatment of Immigration Detainees Housed at Immigration and Customs Enforcement Facilities,” December 2006, http://trac.syr.edu/immigration/library/P1598.pdf (accessed February 7, 2017) p. 29.

[128] Human Rights Watch, Buffeted in the Borderland: The Treatment of Migrants and Asylum Seekers in Ukraine, p. 77.          

[129] Human Rights Watch, From Horror to Hopelessness: Kenya’s Forgotten Somali Refugee Camp, March 2009, http://www.hrw.org/sites/default/files/reports/kenya0309web_1.pdf, p. 23.

[130] Human Rights Watch, “Do You See How Much I’m Suffering Here?”: Abuse against Transgender Women in US Immigration Detention, March 2016, https://www.hrw.org/sites/default/files/report_pdf/us0316_web.pdf, p. 23.

[131] Human Rights Watch, “Like a Death Sentence”: Abuses against Persons with Mental Disabilities in Ghana, October 2012, http://www.hrw.org/sites/default/files/reports/ghana1012webwcover.pdf, p. 44.

[132] Human Rights Watch, “Like a Death Sentence”: Abuses against Persons with Mental Disabilities in Ghana, p. 45.

[133] Ibid.

[134] Ibid.

[135] Human Rights Watch, “Treated Worse than Animals”: Abuses against Women and Girls with Psychosocial or Intellectual Disabilities in Institutions in India, December 2014, http://www.hrw.org/sites/default/files/reports/india_forUpload.pdf, p. 53.

[136] Human Rights Watch, “Treated Worse than Animals”: Abuses against Women and Girls with Psychosocial or Intellectual Disabilities in Institutions in India, p. 12.

[137] Human Rights Watch, Abandoned by the State: Violence, Neglect, and Isolation for Children with Disabilities in Russian Orphanages, September 2014, http://www.hrw.org/node/126108/section/1, p. 50. 

[138] Human Rights Watch, “I Am Not Dead, But I am Not Living”: Barriers to Fistula Prevention and Treatment in Kenya, July 2010, https://www.hrw.org/report/2010/07/15/i-am-not-dead-i-am-not-living/barriers-fistula-prevention-and-treatment-kenya.

[139] WHO and UNICEF, Water, sanitation and hygiene in health care facilities: Status in low- and middle-income countries and way forward, 2015, http://apps.who.int/iris/bitstream/10665/154588/1/9789241508476_eng.pdf?ua=1 (accessed January 30, 2017) p. IV.

[140] WHO and UNICEF, Water, sanitation and hygiene in health care facilities: Status in low- and middle-income countries and way forward, p. 1. See also, Yael Velleman et al., From Joint Thinking to Joint Action: A Call to Action on Improving Water, Sanitation, and Hygiene for Maternal and Newborn Health, December 12, 2014, PLoS Medicine; 11(12), http://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1001771 (accessed January 30, 2017).

[141] Human Rights Watch, “Chop Fine”: The Human Rights Impact of Local Government Corruption and Mismanagement in Rivers State, Nigeria, January 2007, https://www.hrw.org/report/2007/01/31/chop-fine/human-rights-impact-local-government-corruption-and-mismanagement-rivers.

[142] Human Rights Watch, “Chop Fine”: The Human Rights Impact of Local Government Corruption and Mismanagement in Rivers State, Nigeria, p. 43. 

[143] ILO Convention No. 161 on Occupational Health Services (1985), art. 5.

[144] United Nations General Assembly, “The human rights to safe drinking water and sanitation,” Resolution 70/169, A/RES/70/169.

[145] Human Rights Watch, “Work Faster or Get Out”: Labor Rights Abuses in Cambodia’s Garment Industry, March 2015, http://www.hrw.org/reports/2015/03/12/work-faster-or-get-out-0, p. 62.

[146] Human Rights Watch, “Work Faster or Get Out”: Labor Rights Abuses in Cambodia’s Garment Industry, p. 2.

[147] Human Rights Watch, “Work Faster or Get Out”: Labor Rights Abuses in Cambodia’s Garment Industry, p. 7.

[148] Human Rights Watch, “Whoever Raises their Head Suffers the Most”: Workers’ Rights in Bangladesh’s Garment Factories, April 2015, http://www.hrw.org/reports/2015/04/20/whoever-raises-their-head-suffers-most, p. 6.

[149] Ibid. 

[150] Human Rights Watch, Fields of Peril: Child Labor in US Agriculture, May 2010, https://www.hrw.org/sites/default/files/reports/crd0510webwcover_1.pdf; See also, Human Rights Watch, Tobacco’s Hidden Children: Hazardous Child Labor in United States Tobacco Farming, May 2014, https://www.hrw.org/sites/default/files/reports/us0514_UploadNewNew.pdf, pp. 70-71. 

[151] Human Rights Watch, Tobacco’s Hidden Children: Hazardous Child Labor in United States Tobacco Farming, pp. 70-71.

[152] Human Rights Watch, Fields of Peril: Child Labor in US Agriculture, p. 57.

[153] Human Rights Watch, Tobacco’s Hidden Children: Hazardous Child Labor in United States Tobacco Farming, pp. 70-71.

[154] Ibid. 

[155] Human Rights Watch, Ripe with Abuse: Human Rights Conditions in South Africa’s Fruit and Wine Industries, August 2011, http://www.hrw.org/sites/default/files/reports/safarm0811webwcover.pdf, pp. 62-63.

[156] Human Rights Watch, A Raw Deal: Abuses of Thai Workers in Israel’s Agricultural Sector, January 2015, http://www.hrw.org/sites/default/files/reports/israel0115_ForUpload.pdf, p. 33.

[157] Human Rights Watch, “One Year of My Blood”: Exploitation of Migrant Construction Workers in Beijing, March 2008, https://www.hrw.org/reports/2008/china0308, p. 32. 

[158] “Afghanistan: Urgent Need for Safe Facilities for Female Police,” Human Rights Watch news release, April 25, 2013, https://www.hrw.org/news/2013/04/25/afghanistan-urgent-need-safe-facilities-female-police.

[159] “Afghanistan: Urgent Need for Safe Facilities for Female Police,” Human Rights Watch news release. 

[160] “Afghanistan: Urgent Need for Safe Facilities for Female Police,” Human Rights Watch news release. 

[161] Human Rights Watch, Allegation letter regarding the legal gender recognition procedure in Ukraine, as specified in Order No. 60 of the Ministry of Health of Ukraine, April 27, 2015, http://www.hrw.org/news/2015/04/27/allegation-letter-regarding-legal-gender-recognition-procedure-ukraine-specified-ord.

[162] Human Rights Watch, Troubled Water: Burst Pipes, Contaminated Wells, and Open Defecation in Harare, Zimbabwe, November 2013, http://www.hrw.org/reports/2013/11/19/troubled-water-0.

[163] Human Rights Watch, Troubled Water: Burst Pipes, Contaminated Wells, and Open Defecation in Harare, Zimbabwe, p. 37.

[164] “Colombia: FARC Battering Afro-Colombian Areas,” Human Rights Watch news release, July 30, 2014, https://www.hrw.org/news/2014/07/30/colombia-farc-battering-afro-colombian-areas, citing “Agreement No. 005 by which Tumaco’s municipal indigenous and Afro food and nutrition plan is adopted for 2012-2022,” Tumaco Municipal Council, March 13, 2013; Encuesta Nacional de Calidad de Vida – ENCV 2011, as reported by the WHO/UNICEF Joint Monitoring Programme (JMP) for Water Supply and Sanitation.

[165] Human Rights Watch, Silenced and Forgotten: Survivors of Nepal’s Conflict-era Sexual Violence, p. 56.

[166] Shoal Lake 40, “Community Declaration of State of Crisis and Action,” June 13, 2011.

[167] Human Rights Watch, Make It Safe: Canada’s Obligation to End the First Nations Water Crisis, June 2016, https://www.hrw.org/report/2016/06/07/make-it-safe/canadas-obligation-end-first-nations-water-crisis, p. 80.

[168] Ibid.

[169] Human Rights Watch, Cleaning Human Waste: “Manual Scavenging,” Caste, and Discrimination in India, August 2014, https://www.hrw.org/report/2014/08/25/cleaning-human-waste/manual-scavenging-caste-and-discrimination-india.

[170] Human Rights Watch, Cleaning Human Waste: “Manual Scavenging,” Caste, and Discrimination in India, p. 16.

[171] Human Rights Council, Human rights and access to safe drinking water and sanitation, Resolution 12/8, 12th Session, October 12, 2009, para. 3.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

(Washington, DC) – A high-level international meeting on sanitation should address barriers to realizing the human right to sanitation with privacy and dignity, Human Rights Watch said in a report released today. The United Nations and Sanitation and Water for All, a global public-private-civil society partnership to make water and sanitation accessible to everyone, will convene a meeting of finance and water and sanitation ministers on April 19 and 20, 2017 in Washington, DC, on global sanitation and drinking water challenges.

A Dalit woman removes excrement from dry toilets in Kasela village in Uttar Pradesh, India, where the state has failed to enforce laws prohibiting the practice of “manual scavenging.” 

© 2014 Digvijay Singh

The 46-page report, “‘Going to the Toilet When You Want’: Sanitation as a Human Right,” is based on more than a decade of reporting by Human Rights Watch on the abuses, discrimination, and other obstacles people encounter in trying to perform the simple act of relieving themselves with dignity and in safety. As of 2015, 2.4 billion people around the world were estimated to be using unimproved sanitation facilities, defined as those that do not hygienically separate human excreta from human contact. Nearly a billion people practice open defecation – which has been linked to malnutrition, stunting, and increased diarrheal disease, among other harmful effects.

“The way people are able to manage their bodily functions is at the core of human dignity,” said Amanda Klasing, senior women’s rights researcher at Human Rights Watch. “Beyond the personal affront, lack of sanitation significantly undermines other human rights, including health and gender equality.”

The right to sanitation, which is derived from the right to an adequate standard of living, entitles everyone to sanitation services that provide privacy and ensure dignity, and that are physically accessible, affordable, safe, hygienic, secure, and socially and culturally acceptable. However, women, men, and children often do not have facilities that reflect the content of this right in various settings, including in schools, migration and displacement camps, prisons, work sites, and their homes.
 

The way people are able to manage their bodily functions is at the core of human dignity. Beyond the personal affront, lack of sanitation significantly undermines other human rights, including health and gender equality.

Amanda Klasing

Senior women’s rights researcher

Human Rights Watch has conducted research from 2005 to 2017 in countries including China, India, Nepal, Russia, South Africa, and the US. The research highlights some of the barriers to realizing the right to sanitation in these settings and some of the effects of a lack of sanitation on a range of other human rights. In almost every context, discrimination – based on caste, gender, disability, age, or other protected status – prevents some people from obtaining adequate sanitation and perpetuates other forms of inequality for marginalized populations.

“We had a toilet, but it was not good. If there are proper toilets, girls will feel better when they are on their periods and have to change their pads. Many girls stay home during their periods,” Chandni Rai, 19, said of the difficulties of managing menstrual hygiene at school, and the effect this had on girls’ education in Nepal.

Women and girls often face discrimination in having safe and private sanitation facilities and the material resources to manage their menstruation, Human Rights Watch found. This lack of access may undermine other rights, including to education, health, work, and gender equality.

A lack of access to safe, accessible, and private sanitation facilities can also undermine the rights of people with disabilities, older adults, and transgender and gender non-conforming individuals, Human Rights Watch said. Toilets, open defecation fields, and bathing facilities can become the site of sexual violence and harassment. Government failure to consult with communities and facilitate participation in decision making, particularly with marginalized minorities, may also compound discrimination and exclusion in access to sanitation.

Human Rights Watch also documented government failure to fully respect, protect, and fulfill the right to sanitation for people deprived of their liberty in jails or detention centers, often at the expense of other human rights.

The United Nations 2030 Agenda for Sustainable Development calls, in its Goal 6, for access to adequate and equitable sanitation and hygiene for all by 2030 and for an end to open defecation. To achieve that goal, governments and donors need to address sanitation as a human right and make funding commitments to eliminate barriers to sanitation and to address discrimination. They should also make sure that participation by the groups involved and accountability for a lack of adequate facilities are built into their investments in sanitation.

“We have talked with people with disabilities who described crawling up steps to an inaccessible toilet, women in displacement camps who were terrified to venture to a toilet in a remote area, and people who had no access to sanitation facilities at all,” Klasing said. “Efforts to ensure adequate and safe sanitation and hygiene resources should be rooted in the human right to sanitation for everybody.” 

Posted: January 1, 1970, 12:00 am

(Washington) – Congressional efforts to draft a new version of a bill to repeal the Affordable Care Act may be just as threatening to women across the United States as the previous Republican-sponsored bill, Human Rights Watch said today, based on media reports that members of Congress have started new rounds of health care discussions.

Demonstrators that include mostly medical students protest a proposed repeal of the Affordable Care Act in New York, U.S., January 30, 2017. 

© 2017 Reuters

Human Rights Watch published the accounts of several women who described their reliance on services that they received under the Affordable Care Act and that they would probably lose under proposals being discussed by House Republicans.

“The Affordable Care Act contains important protections for women’s health services,” said Amanda Klasing, senior women’s rights researcher at Human Rights Watch. “If Republicans revive their efforts to repeal it without protecting these provisions, they will put themselves on a path to reducing women’s access to vital health care services.”

The article includes short narratives drawn from conversations with women from Louisiana, Colorado, and Arizona whose access to the care they needed was tied to the Affordable Care Act, Medicaid expansion, and access to Planned Parenthood. They described the potential impact on their lives of eliminating these services.

The narratives help illustrate the complexities of women’s health needs and the extent to which many depend on protections provided under the Affordable Care Act, Medicaid expansion, and Planned Parenthood.

I am terrified that Congress will take away Medicaid expansion because most people on Medicaid are like me, what I call the poor middle class.

Jacquelyn, New Orleans

“I am terrified that Congress will take away Medicaid expansion because most people on Medicaid are like me, what I call the poor middle class,” said Jacquelyn of New Orleans. “We are people who have student debt and medical debt and who work 40 to 50 hours a week to keep our heads above water.”

The women who shared their stories sought care from a variety of health institutions. They needed a range of services, including treatment of conditions such as endometriosis, a painful condition in which uterine tissue grows outside the uterus, and ovarian cysts; testing for sexually transmitted diseases; contraception; cancer screening and preventive services; post-sexual assault services; hormone therapy; treatment for heart disease and chronic illness; and mental health services.

Under proposals currently being discussed by House Republicans, states could decide that insurers no longer had to provide coverage for most of these health needs, or could charge much higher premiums for coverage. Some of the women Human Rights Watch spoke to bought health insurance for the first time under the Affordable Care Act, which provided tax credits to offset the cost of insurance premiums.

As they attempt to revive the American Health Care Act, House Republicans are trying to decide just how much to cut and change the Medicaid program. One of the most important ways the Affordable Care Act succeeded in insuring more people was by expanding Medicaid to cover people with incomes of up to 137 percent of the federal poverty level.

Witness: Terrified to Lose Their Healthcare

Witness: Terrified to Lose Their Healthcare

Many women in the US rely on the ACA and Planned Parenthood to provide health care for themselves and their families. Now they fear for the future.

Medicaid is fundamental for women’s health in the United States—covering roughly half of all births and 75 percent of public financing for family planning services, among other key women’s health services. Nearly half of low-income women in the US rely on Medicaid for health insurance, as do roughly one in three Black women, one in four Latina women, and one in five Asian and Pacific Islander women of reproductive age.

Health care coverage improved dramatically in many states that expanded Medicaid under the Affordable Care Act. In Louisiana, for example, more than 400,000 people have gained health insurance coverage since July 2016—more than 60 percent of them women. Some of the women Human Rights Watch featured have benefitted dramatically from Louisiana’s efforts and now fear that their ability to get health care will be taken away.

Many House Republicans appear to remain eager to continue their attack on Planned Parenthood through any repeal of the Affordable Care Act. Many favor a prohibition on Medicaid reimbursements for Planned Parenthood services. Planned Parenthood provides a broad range of essential health services, including safe, non-judgmental services for victims of sexual violence; screening for cancer, diabetes, and high blood pressure; vaccines; and other preventive health care.

Planned Parenthood provides these services in some of the most marginalized communities in the country. More than half of its clinics are in rural or urban areas that are designated “medically underserved.” In more than 100 counties throughout the country, Planned Parenthood clinics are the only providers of family planning services.

“The GOP should stop its attempts to repeal the protections in the Affordable Care Act for women’s health and its efforts to hobble Planned Parenthood,” Klasing said. “The health, and lives, of women across the United States depend on the services their proposals would take away.”

Posted: January 1, 1970, 12:00 am

Part of a new series on openGlobalRights called "Resiliance as Resistance: Mental Health and Well-being in Human Rights."

Human rights organizations are finally recognizing that mental health programs for their own staff are long overdue. A contribution to the openGlobalRights debate on mental health and human rights. 

About 15 years ago, Human Rights Watch realized we had to get more serious about physical security. The risks to ourselves and others were too great, so we created a security team to develop guidelines and to implement protocols. A few years ago, we made the overdue decision to hire a full-time security director.

Today we’re taking similar steps to protect the mental health of our roughly 450 staff around the world. We cannot eliminate the mental stresses of human rights work, but we can offer preventive care and remedies to stay healthy and productive over the long-term.

In part this is linked to staying physically safe. Groups like Tactical Tech use the term “holistic security” to describe the interplay between self-care, psycho-social well-being and physical safety. When employees are sleep deprived, anxious or stressed, they are more likely to magnify minor incidents or to downplay serious threats.

Arguments of efficiency also carry weight. Every time someone takes an extended break or leaves the job due to burn out, or even PTSD, we face a gap in our ability to work for others. As a practical matter, human rights organizations should give staff the tools to stay healthy, and offer support when they feel unwell.
 

But the focus on mental health goes well beyond the pragmatic goals of security and productivity. Fundamentally, it’s a recognition that human rights organizations have a responsibility to care for their staff. As the body of evidence about the mental health impact of human rights work grows, so does our obligation to address it.

This duty extends beyond front-line investigators to include the reviewers, lawyers, video editors, press officers, advocates and others who process and disseminate the material.  As visual products and social media have become essential to the work, many of us spend hours looking at disturbing material which can have an equally debilitating effect.

Until recently, large human rights groups like ours have tended to lag behind the media, humanitarians and others who were more aware of the mental hardship caused by their work. Out of ignorance or martyrdom, we persevered, convinced that we could not take a break. At times the culture of “pushing through” prevails, especially as the field gets professionalized and people try to prove their worth.

The stigma around mental health also still exists, with people at times afraid to raise concerns lest they be considered ineffective or weak. The organizational push for output and impact can intimidate those who need help.

Thankfully, these attitudes are starting to shift. We and other international human rights organizations increasingly see self-care not as selfish but as strategic. If we as individuals and organizations want to be effective and healthy over time, we must care for ourselves and each other.

A few years ago, for instance, Human Rights Watch re-examined its insurance package to ensure that colleagues get adequate coverage for counsellors and therapists. Recognizing this was often insufficient, we now help to cover six additional sessions per year beyond what insurance provides.

We also hired a full-time mental health professional who is available for confidential consultations in person, by phone or by Skype. This has proven a valuable resource, especially as the person has come to know us as individuals and as an organization, giving recommendations on what to improve and trainings to new staff.

Last year we formed a task force on stress and resilience to explore how else to improve. The overarching goal is to raise awareness across the organization, to reduce the stigma, and to send a message that these issues are safe to discuss.

The group developed internal guidelines – posted prominently around offices – for working with graphic photos and videos, recognizing that people beyond field researchers face the risk of secondary trauma. A staff survey on mental health benefits and usage helped us identify where the challenges lie.

A key focus is how we communicate within the organization. Staff have repeatedly identified the internal editing process and our brash manner as sources of stress. After hearing tales of abuse, we can explode when a colleague is abrupt or rude.

That challenge is difficult to overcome, and regularly distributed e-mail etiquette guidelines only go so far. The organizational culture must change to develop practices that promote respectful communication even in stressful times. More essentially, we must offer support so colleagues can prepare for and process the woeful tales.

Managers play a central role. They need training to recognize the signs of burn-out and how to handle it, as well as backing to offer workable, creative solutions. An organization’s leadership can set the tone by preemptively raising issues, discussing their own approaches, and giving staff the space to raise concerns.

We are also exploring how to offer peer-to-peer support. Our in-house mentoring program goes some of the way, but basic training would teach us how to help each other.

Lastly, we are consulting with other organizations who are grappling with these challenges, including in the medical, humanitarian and media fields. Best practices can emerge from discussion and debate.

In the end, we should not deny or ignore the mental burdens of our work but acknowledge and manage them, so they don’t compete with the deep sense of meaning and joy.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

The United Nations special rapporteur on the right to health did something remarkable last week: he traveled to the Indonesian provinces of Papua and West Papua.

Dainius Puras’ two-day trip to Papua, part of a two-week official visit, was notable for the simple fact the Indonesian government allowed it to happen. Given the government’s long history of blocking scrutiny of conditions in Papua by foreign media and international observers, including UN experts, this development may indicate a change in policy.

A woman who is infected with HIV prepares her medicines in a shelter house in Jayapura of the Indonesia Papua province November 27, 2008. 

© 2008 Reuters

In 2013, the government rejected the proposed visit of Frank La Rue, then-UN special rapporteur on freedom of expression, because he insisted on travelling to Papua. The government has justified limiting international observers’ access to Papua on security grounds, but the reality is the government and the security forces are just unwilling to face criticism from nongovernmental organizations and the foreign media.

Puras’ observations about health conditions in Papua are a searing indictment of the government’s failings on public health. He singled out the fact that ethnic Papuans “are two times more likely to have HIV/AIDS than the rest of the population and new infections are on the rise.” He called for the development of “culturally sensitive” HIV/AIDS treatment in the region.

Other statistics are equally alarming: Papua has the lowest life expectancy in Indonesia and the country’s highest infant, child, and maternal mortality rates. Despite Papua’s glaring health service deficiencies, the government severely restricts access of international NGOs, including those that provide much-needed healthcare services. In August 2010, the government banned from Papua the Dutch international aid organization Cordaid. The government asserted the organization had assisted Papua pro-independence activists, an allegation Cordaid denied.

Puras’ concerns about health rights in Papua should be a wakeup call to the government that its current policies on health in Papua are seriously inadequate. The government should recognize that international NGOs – and allowing media to freely report in Papua – can play a crucial role in supporting official efforts to fill gaps in public health delivery systems. Permitting Puras’ visit will hopefully open the door to wider international access to Papua, so that the government can get support to address the appallingly poor health indicators of ethnic Papuans.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

(Washington, DC) – The US State Department’s move on April 3, 2017, to block funding to the United Nations Population Fund (UNFPA) endangers key health and protection services for some of the world’s most marginalized women and girls, Human Rights Watch said today. The US is one of the agency’s largest donors, providing US$69 million annually, allocated globally for its core funding and humanitarian emergency responses.

Women survivors of super typhoon Haiyan listen during a lecture on prevention of gender-based violence by a United Nations Population Fund (UNFPA) volunteer in Tacloban city in the central Philippines on December 14, 2013. 

© 2013 Reuters

The State Department’s determination is based on the Kemp-Kasten Amendment, enacted initially in 1985, which prohibits US foreign assistance to any organization that the administration determines is involved in coercive abortion or involuntary sterilization. The administration cites UNFPA’s presence in China and US concerns about the government of China’s restrictive reproductive health policies. The State Department determination provides no evidence that the agency favors or directly supports coercive abortions or involuntary sterilizations.

“The UN Population Fund provides leadership in working against restrictive environments around the world for women’s rights, from addressing preventable maternal deaths to fighting against female genital mutilation and child marriage,” said Amanda Klasing, senior women’s rights researcher at Human Rights Watch. “The Trump administration is making a decision that will cost women their lives.”

The UN Population Fund provides leadership in working against restrictive environments around the world for women’s rights, from addressing preventable maternal deaths to fighting against female genital mutilation and child marriage. The Trump administration is making a decision that will cost women their lives.

Amanda Klasing

Senior women’s rights researcher

In 2002, the Bush administration sent an independent assessment team to investigate whether there was evidence that the Population Fund supported coercive policies. That assessment concluded, “based on what we heard, saw, and read, we find no evidence that UNFPA has knowingly supported or participated in the management of a program of coercive abortion or involuntary sterilization in the PRC [People’s Republic of China]. Indeed, UNFPA has registered its strong opposition to such practices.”

Despite these findings, then-Secretary of State Colin Powell cut the agency’s funding because they work with the Chinese government and continued to have operations in China.

Unlike the 2002 determination, the new determination by Under Secretary Tom Shannon does not appear to be based on an independent assessment, an analysis of statutory language, or presentation of evidence linking the Population Fund to abuses. Instead, the State Department asserts that “while there is no evidence that UNFPA directly engages in coercive abortions or involuntary sterilizations in China, the agency continues to partner with the NHFPC [National Health and Family Planning Commission] on family planning, and thus can be found to support, or participate in the management of China’s coercive policies…” Currently, the US government discounts its contribution by a dollar for every dollar the UNFPA spends in China. However, a cut of all US funding to the agency’s overall budget will have an impact not just on women in China, but on women everywhere.

UNFPA is a United Nations agency operating in more than 150 countries globally, supporting programs to end female genital mutilation and child marriage, to reduce preventable maternal deaths through technical support and training of skilled birth attendants, and to promote voluntary family planning. The agency also supports sexual and reproductive health services in humanitarian emergencies and works to prevent and respond to gender-based violence.

The Population Fund has responded to allegations of complicity in China by saying it does not promote coercion or birth quotas of any kind anywhere in the world and that all of its programs are vetted and monitored by an executive board, of which the US is a member.

Human Rights Watch works around the world against restrictive laws and policies on reproductive rights. Human Rights Watch has long expressed concern about restrictions and coercive reproductive health policies in China and their implementation.

“Around the world, the UN Population Fund commits itself to a human-rights approach to women’s reproductive health and services,” Klasing said. “Cutting its funding undermines an important resource for women to get urgently needed care, get information and exercise choice.”

Posted: January 1, 1970, 12:00 am

Summary

For the last 25 years, Israel has imposed increasingly strict restrictions on travel to and from the Gaza Strip. Those restrictions affect nearly every aspect of life in Gaza, including the ability of human rights workers to document violations of human rights and international humanitarian law (IHL) and to advocate for their remediation. While Israel makes exceptions to its travel ban for what it calls humanitarian reasons, as a rule, it does not permit Palestinian, Israeli and foreign staff of human rights organizations to enter or leave Gaza. Israel controls Gaza’s airspace and territorial waters and has prevented the operation of an airport or seaport for the past two decades, rendering Palestinians in Gaza dependent on foreign ports to travel abroad. It also severely restricts all travel between Gaza and the West Bank, recognized as a single territorial unit, even when the transit does not take place via Israeli territory.

Egypt has kept its border crossing with Gaza, Rafah crossing, mostly closed since 2013, opening it every several weeks to allow passage for a few thousand people. It has refused permission for foreign human rights workers to enter Gaza via the Rafah crossing in recent years and has restricted the ability of Palestinian human rights workers to cross. In justifying its restrictions on access via Rafah, Egypt says that Israel, as the occupying power, is responsible for Gaza, and it also cites the security situation in the area of Egypt's Sinai Peninsula bordering Gaza, where an affiliate of the Islamic State has engaged in violent confrontations with the Egyptian military since 2013, killing hundreds. But Egypt began greatly restricting transit through Rafah before the security situation in the Sinai deteriorated and shortly after the military's July 2013 removal of former President Mohamed Morsy, whom the military accused of receiving support from Hamas. While Egypt does not owe obligations to Palestinians under the law of occupation and can, with some important limitations, decide whom to allow to enter its territory, its actions are exacerbating the impact of Israel’s travel restrictions on residents of Gaza.

The Israeli government justifies the restrictions on travel, including travel for human rights workers, on two grounds. First, it says, travel between Gaza and Israel inherently endangers Israeli security, whether the travelers are Palestinians or not, and irrespective of any individualized risk assessment for a particular person. Second, it says, its obligations toward Gaza are limited to allowing passage for exceptional humanitarian circumstances only, and job-related travel for human rights workers does not qualify as exceptionally humanitarian.

Without the ability to get staff, consultants and volunteers into and out of Gaza, Palestinian human rights groups find it difficult to maintain programs across Gaza and the West Bank, which Israel recognized as a single territorial unit, and about which there is international consensus that is it occupied territory.[1] Palestinian human rights workers from Gaza are all but barred from accessing training and professional development opportunities outside Gaza and from meeting with their West Bank-based colleagues. Foreign and Israeli staff of human rights organizations are ordinarily not permitted into Gaza, limiting their ability to identify, research and advocate against human rights and IHL abuses and keeping experts from applying specialized knowledge to the research and documentation of IHL violations, including possible war crimes.

The Hamas authorities in Gaza, for their part, have not taken adequate steps to protect human rights defenders against retaliation for criticizing armed groups in Gaza, and in some cases they have arrested and harassed Palestinians who express criticism of the Hamas regime.

The prosecutor of the International Criminal Court (ICC) has opened a preliminary examination into possible serious crimes committed in Palestine, including Gaza, as of June 13, 2014. A key factor the prosecutor will consider in determining whether to open a formal investigation is whether any credible national proceedings exist that would preclude the ICC’s involvement. Under what is known as the principle of complementarity, the ICC is a court of last resort, stepping in only where national authorities are unable or unwilling to conduct genuine domestic proceedings.

In public statements and documents, the Israeli government and military have argued vigorously that the Israeli mechanism for investigating potential war crimes meets international standards and that Israeli officials are actively and genuinely investigating all relevant claims and information regarding potential violations of IHL. The Israeli authorities acknowledge the difficulty of collecting evidence from inside Gaza, where Israel no longer has a permanent ground troop presence, and of receiving complaints and information from witnesses and victims inside Gaza, who fear and distrust the Israeli military. However, they cite, among other means, cooperation with and reliance on human rights and other nongovernmental organizations as an important means of receiving information about potential violations of IHL and obtaining the cooperation of Palestinian witnesses. Yet the restrictions that the Israeli military imposes on access for human rights workers make it more difficult for human rights workers to document potential violations. These restrictions hamper what is, by the Israeli government’s own acknowledgement, a significant source of information and evidence about potential IHL violations, raising questions not just about the capability of the Israeli authorities to investigate potential violations of the laws of war but also their willingness to do so.

Israel’s restrictions on access to and from Gaza go far beyond what is permitted by international humanitarian law and human rights law. Because Israel continues to exercise control over significant aspects of life in Gaza, it continues to have obligations under the law of occupation in the areas in which it continues to exercise control – primarily to allow the movement of people and goods. While the law of occupation allows Israel to restrict travel for imperative reasons of security, the generalized travel ban it imposes is vastly disproportionate to any concrete security threat. Israel is also required, under the law of occupation as codified in Article 43 of the Hague Regulations,[2] to permit the proper functioning of civil society, including human rights organizations and activity. The ban also runs afoul of Israel’s obligations to respect the human rights of Palestinians in Gaza and the West Bank, including their right to freedom of movement, which includes, with some limitations, a right to enter and leave one’s country and to choose one’s place of residence within it.

Israel should bring its policy on access to Gaza into conformity with its obligations under IHL and human rights law. It should do so by facilitating access to and from Gaza for all Palestinians, subject to individualized security screenings and inspections. In particular, it should facilitate access for Palestinian human rights workers, whose activities are an essential part of a properly functioning society and who are part of a civil society that, by the Israeli government’s own admission, plays an important role in documenting and advocating against potential war crimes and violations of IHL. Israel should also strongly consider permitting access to Gaza for foreign human rights workers, who contribute to the proper functioning of normal civilian life by providing assistance to local human rights groups, strengthening civil society, and helping to protect victims. The work of such organizations defending human rights has been recognized as worthy of protection by the United Nations General Assembly.

Human Rights Watch also recommends that the International Criminal Court open a formal investigation into the situation in Palestine in order to ensure accountability for any potential serious crimes committed in Palestine since June 2014. It recommends that the Hamas authorities in Gaza take steps to protect human rights activists and allow them to document violations by all sides, including by Hamas and armed Palestinian groups inside Gaza. 

Egypt also should consider the impact of its closure of the border with Gaza on the rights of Palestinians living there, as well as its obligations to uphold the Fourth Geneva Convention, which provides protections for people living under occupation.

Recommendations

To the Israeli Defense Ministry and Interior Ministry

  • End the generalized ban on travel to and from Gaza, and permit the free movement of people to and from Gaza, subject to individual security screenings and physical inspection. Such screenings should take place in a transparent, non-arbitrary manner, should give individuals an opportunity to challenge refusals directly before the Israeli authorities, and should balance measures to protect against specific, concrete security threats with Israel’s obligations toward Palestinians living in Gaza.
  • Until the travel ban is lifted, add human rights workers to the categories of Palestinians permitted to travel between Gaza, Israel and the West Bank and to travel abroad from Gaza in order to access work meetings, trainings, conferences, and other professional development opportunities, including rest and relaxation breaks.
  • Allow foreign and Israeli human rights organizations to send personnel, consultants, volunteers and experts into Gaza in order to engage in work-related documentation, training, research, and advocacy.
  • Facilitate access to ports for travel abroad. Until Palestinians are permitted to reopen and reestablish their airport and open a seaport, allow Palestinians to use Israeli ports for travel.

To the International Criminal Court’s Office of the Prosecutor

  • In evaluating the credibility of Israel’s domestic investigations, take into consideration Israel's policy on travel for human rights workers, including the effect of the travel restrictions on the quality and extent of the information that reaches Israeli military authorities and how this may reflect on the ability and willingness of the authorities to conduct genuine proceedings.
  • Raise concerns with Israeli authorities about their policy toward the movement into and out of Gaza for human rights workers.

To the Hamas Authorities in Gaza

  • Protect human rights workers in Gaza from all threats of retaliation or harm, physical or otherwise, stemming from their research and advocacy regarding human rights and IHL violations, including abuses by armed groups in Gaza.
  • Refrain from arresting, censoring or otherwise taking action against people in Gaza who peacefully document human rights and IHL violations and express criticism of the government, including human rights activists, journalists, and others.
  • Conduct genuine investigations into alleged serious crimes committed by armed Palestinian groups in Gaza during the 2014 war.

To Egypt

  • Like all parties to the Fourth Geneva Convention, Egypt should do everything within its power to ensure the universal application of the Convention’s humanitarian provisions, including protections for civilians living under occupation.. Egypt should also allow access for United Nations Human Rights investigators and consider the impact of its border closure on the rights of Palestinians to travel to and from Gaza.

Methodology

This report examines Israel’s policy on allowing access into and out of Gaza for staff members, consultants, volunteers and other personnel working with Palestinian, Israeli, and foreign human rights organizations. It also examines the impact of that policy on the ability of the Israeli authorities to investigate adequately violations of IHL that allegedly occurred in Gaza or are otherwise related to the conduct of hostilities between the Israeli military and armed Palestinian groups in Gaza.  

A Human Rights Watch researcher and two Human Rights Watch research assistants conducted 12 interviews with representatives of four Palestinian human rights organizations based in Gaza, two foreign human rights organizations, and one Israeli human rights organization. Four of these organizations play a prominent role in documenting abuses stemming from the conduct of hostilities between Israel and Palestinian armed groups in Gaza.

We also reviewed documents published by the Israeli Defense Ministry outlining the criteria for entering and leaving Gaza, court documents in which the Israeli authorities explained their policy regarding access for Gaza and its rationale, written responses to individual requests to travel to and from Gaza, and public statements, written and oral, made by the Israeli authorities regarding their mechanisms for investigating violations of IHL by Israeli armed forces and the nature of their relationship with human rights organizations.

We reviewed publications by these human rights organizations, including a 2016 report on the effect of the travel restrictions on civil society organizations and reports issued by human rights groups on the conduct of hostilities during the summer of 2014. Human Rights Watch wrote to the Israeli military attorney general (MAG) seeking comment and received a letter in response, the full text of which is included in the annex to this report.

In the course of researching this report, Human Rights Watch repeatedly requested permission for its foreign staff members to enter Gaza. The Israeli authorities refused most of those requests, but they approved the last request on an exceptional basis, as will be described in the report, and two representatives of Human Rights Watch visited Gaza in September 2016.

All interviewees freely consented to be interviewed. Human Rights Watch explained to them the purpose of the interview and how the information gathered would be used, and did not offer any remuneration.

I. Closure of Gaza

The Gaza Strip, the West Bank and Israel, together make up the land that was mandatory Palestine, governed by the UK, in the post-World War I era. The cultural, political, economic, social and familial ties between these areas run deep, and for most of the modern era there was freedom of movement across the region. The 1948 Arab-Israeli War divided these areas, leaving Gaza under Egyptian military occupation, the West Bank under Jordanian rule, and Israel as a sovereign state. Palestinian refugees from what became Israel fled or were expelled to Gaza, and today 72 percent of Gaza’s 1.8 million residents are refugees or their descendants.[3] The Israeli capture of Gaza and the West Bank in 1967 led to all the areas coming under the control of Israel, with Israel establishing two military governments to rule Gaza and the West Bank.

For the first two decades of the Israeli occupation, Palestinians were mostly permitted to travel between Israel, Gaza and the West Bank, effectively rejuvenating the historical ties that had been interrupted in 1948. While the Israeli military declared Gaza and the West Bank to be closed military zones, it issued a series of “general exit permits” mostly allowing Palestinians to travel without need of an individualized permit, unless individually prohibited.[4]

Students at the Islamic University of Gaza. 

© 2017 Abier Almasri

In 1991, during the first Intifada or Palestinian uprising and against the backdrop of the first Gulf War in which Iraq bombed Israel, the Israeli military canceled the general exit permit that had been in place and gradually began to require Palestinians to obtain individual permits to travel. Although the 1995 Oslo Peace Accords recognized Gaza and the West Bank as a “single territorial unit,” during the 1990s it became increasingly difficult to travel between the two areas, and in 1995 Israel built a fence along its border with Gaza.[5] With some ebbs and flows, between 1991 and 2005, travel into and out of Gaza became increasingly restricted.[6] The restrictions coincided with escalations of violence, including armed clashes between armed groups in Gaza and the Israeli military, attacks on the crossings between Gaza and Israel, and bombings targeting Israeli civilians inside Israel and the Gaza Strip.

For most of that time period, the Israeli military, which controlled access between Gaza and the outside world, justified the travel restrictions by citing security concerns or military necessity. The restrictions included both individual travel bans, based on assessments by the Israel Security Agency (ISA or Shin Bet), and generalized restrictions, such as closing crossings, blocking entire categories of people from traveling, or limiting travel to humanitarian cases.[7]

In 2005, Israel removed the civilian settlements it had established in the Gaza Strip, ended its permanent ground troop presence there, and withdrew from the Gaza-Egypt border. At that time, the rationale for imposing travel restrictions began to shift. Israel claimed that it no longer occupied the Gaza Strip and that it therefore no longer owed obligations to Palestinian residents of Gaza under the law of occupation, including a duty to permit travel.[8] In September 2007, following the collapse of a Palestinian national unity government and the takeover of internal control of Gaza by the Hamas movement, the Israeli government issued a cabinet decision announcing restrictions on the movement of people and goods into and out of Gaza, including in order to weaken the economy in Gaza, which the government declared to be a “hostile territory.”[9]

The Israeli government calls its policy restricting access into and out of Gaza “the separation policy,” which it says serves both security and political goals.[10] It says it wants to restrict travel between Gaza and the West Bank to a minimum in order to avoid transferring “a human terrorist network” from Gaza to the West Bank,[11] the latter of which has a porous border with Israel and is home to a half million Israeli settlers. Today, access into and out of Gaza for Palestinians is limited to “exceptional humanitarian circumstances, with an emphasis on urgent medical cases,”[12] although Israel also considers hundreds of senior merchants and others eligible to travel.

In 2016, there were on average 12,150 crossings per month of Palestinians from Gaza entering Israel and the West Bank,[13] compared with more than half a million crossings in September 2000, on the eve of the outbreak of the second Intifada or Palestinian uprising.[14] The number of crossings is much higher than the number of people who travel because some travelers, especially merchants, travel multiple times per month. Access for Palestinians between Gaza, Israel and the West Bank is barely more than 2 percent of what it was in September 2000, and most of Gaza’s nearly 2 million residents are not permitted to travel.

Also in 2016, an average of 700 representatives of international organizations, primarily humanitarian aid workers, traveled between Gaza and Israel and the West Bank each month. There is additional travel by foreigners (people listed on neither the Palestinian nor the Israeli population registry) between Gaza and Israel and the West Bank each month via the Erez passenger crossing, including journalists, diplomats and those traveling to visit immediate family members in cases of death, grave illness, or weddings.[15] Still, access via the Erez crossing has risen from what appears to be an all-time low in 2008, a year in which the criteria were particularly restrictive. That year, there were only about 2,000 crossings per month of Palestinians from Gaza to Israel, mostly medical patients and their companions, diplomats, and humanitarian aid workers.[16]

These restrictions have devastated the economy in Gaza,[17] separated families,[18] blocked access to medical care[19] and educational opportunities,[20] thwarted reconstruction,[21] and deepened the split between Gaza and the West Bank, a rupture exacerbated by the 2007 Palestinian factional split that left Fatah governing the West Bank and Hamas governing Gaza.

Israel withdrew from the Rafah border crossing between Gaza and Egypt in 2005, leaving Egypt and Hamas in control of their respective sides. Egypt has kept the Rafah crossing mostly closed since the 2013 overthrow of President Mohamed Morsy, reflecting strained relations between the new Egyptian government and the Hamas government in Gaza, which is affiliated with Morsy’s Muslim Brotherhood party. On the rare days that the Rafah crossing opens, once every several weeks, access is limited to the few thousand people who can cross before it closes. Priorities are determined by the Hamas government and the Egyptian authorities. In 2016, there were 3,520 crossings per month of Palestinians between Egypt and Gaza in both directions, compared with a monthly average of 34,991 in 2012.[22] In other words, access for Palestinians between Gaza and Egypt is just ten percent of what it was in 2012, and the Rafah crossing is closed most of the time.  Egypt had been the gateway to travel abroad for Palestinians in Gaza but is now mostly closed off to them.

Israel controls Gaza’s airspace and territorial waters and, citing security concerns, permits no air or sea travel to or from there.[23]

For all these reasons, travel via the Erez crossing is the primary route for travel between Gaza, Israel, the West Bank, and foreign countries.

II. Access for Human Rights Workers

The umbrella organization PNGO, whose membership includes only some of Palestine’s civil society groups, lists 135 nongovernmental organizations working in fields such as development, culture, education, environment, and human rights.[24] Dozens of Palestinian human rights organizations are either based in Gaza or conduct activities in Gaza. Among these are human rights organizations that research and report on violations of IHL or the laws of war, including during escalations of violence between Israel and armed Palestinian groups in Gaza. In addition, at least two Israeli human rights organizations conduct research in Gaza through permanent field researchers who live there, and foreign human rights organizations either employ permanent staff members or periodically conduct research in Gaza. Human Rights Watch has employed a permanent research assistant in Gaza since 2009.

Israeli Policy on Travel

The Israeli military considers both Gaza and the West Bank to be under a “closure,” meaning the default rule is that Palestinians may not travel into Israel or between Gaza and the West Bank unless they qualify for enumerated exceptions that change periodically. Following extensive litigation under Israel’s Freedom of Information Act,[25] the Israeli Defense Ministry now publishes its criteria for travel between Gaza, the West Bank and Israel, called “permissions in the closure.”[26] The criteria permit travel for patients seeking medical care outside Gaza and their companions, “senior merchants” purchasing goods from Israel or the West Bank, family visits for immediate family in cases of death, grave illness or weddings, elderly worshippers traveling to Jerusalem, visits to relatives incarcerated in Israel,[27] and others. Senior merchants make up the largest category of Palestinians entering Israel, accounting for 54 percent of all crossings by Palestinians, with medical patients accounting for 21 percent. [28] The third largest category of people crossing are employees of international organizations, who constitute nearly 5 percent of all crossings by Palestinians into Israel from Gaza, more than 700 per month.[29] This last category includes Palestinian employees or contractors of diplomatic representations or international aid organizations registered with the Israeli ministries of Social Welfare, Foreign Affairs, or Interior.[30]

Belonging to one of these approved categories qualifies an individual to apply for a travel permit but does not guarantee they will receive one. Access in some categories is subject to quotas, and access for all travelers is subject to a security screening by the ISA. Such screenings are nontransparent, and when the ISA objects to granting a permit, little or no information about the nature of the security allegations are available to the applicant or their legal representative.

Human rights workers – Palestinian, Israeli or foreign – are not included in the categories of people eligible to travel through the Erez crossing. When Palestinian, Israeli or foreign human rights organizations request access for staff, visitors or volunteers, the Israeli government systematically refuses. In some cases, the Israeli military claimed that it would not allow travel for employees of human rights organizations because those organizations have not registered with the Israeli authorities as international organizations.[31] Yet registration appears limited to diplomatic representations such as foreign embassies or the United Nations and “international aid organizations providing assistance to the Palestinian territories.”[32] No publicly available procedure has been established for allowing human rights organizations to register. Since 2013, the Israeli human rights group Gisha has asked multiple government agencies for information regarding the supposed ability of international organizations, other than aid organizations and diplomats, to register for purposes of requesting travel permits, but no government agency has taken responsibility for such registration, and a procedure to request recognition does not appear to exist.[33]

In a failed court challenge of that policy, brought by the Israeli human rights groups B’Tselem and Gisha when they sought permission for B’Tselem’s field researchers from Gaza to attend meetings and trainings in Jerusalem, the Israeli authorities explained the distinction they draw between humanitarian organizations and human rights organizations for purposes of travel into and out of Gaza:

As far as recognized international organizations are concerned, we are talking about organizations such as the International Red Cross, the World Health Organization (WHO), the United Nations Refugee Works Agency (UNRWA), the United Nations Development Corporation (UNDP), and the like, which work in the Gaza Strip and Judea and Samaria for the purpose of humanitarian assistance to residents of the Strip, including in areas such as welfare, education, health, etc.…[34]

The policy, according to the Israeli government, promotes the foreign policy interests of the State of Israel by allowing passage for employees of certain international organizations and diplomatic representatives and workers whose passage is needed to fulfil Israel’s commitment “not to harm the humanitarian minimum that residents of the Strip need – including giving travel permits in appropriate humanitarian circumstances.”[35]

The standard reply to travel requests from human rights organizations is that travel to and from Gaza is limited to exceptional humanitarian circumstances, and that travel to facilitate human rights work does not meet those criteria.[36] As noted, the Israeli human rights group B’Tselem has repeatedly failed to get permission for its field researchers to leave Gaza for meetings with the rest of the staff in Jerusalem.[37] The Gaza-based Palestinian human rights groups the Palestinian Center for Human Rights (PCHR) and al-Mezan Center for Human Rights continue to request permits for their staff members invited to workshops, trainings, meetings and conferences, but they routinely and repeatedly receive refusals.[38]

While the explanation differs slightly, the Israeli military also refuses to allow foreign human rights workers living in Israel or visiting it to enter Gaza at least since 2012. Amnesty International, a leading human rights group based in London that has documented human rights and IHL violations in Gaza since the 1980’s, has tried for the last four years to get its staff into Gaza. The last time Israel granted permission was June 2012. When hostilities between Israel and armed Palestinian groups in Gaza erupted in November 2012, the Israeli military authorities refused or failed to respond to multiple requests from Amnesty International to enter both during and after the fighting. Amnesty International was able to get its staff into Gaza in 2012 via the Egyptian border, which was open at that time. By the next period of hostilities in July and August 2014, the Egyptian border had closed. Amnesty International submitted four separate requests to the Israeli authorities during the fighting, but the authorities refused. Immediately following the hostilities, Amnesty International appealed the refusal through an ombudsman branch of the Israeli military, also with no success. [39] 

In July 2015, a lawyer acting on behalf of Amnesty International requested access for the group’s foreign staff. In September 2015, the Israeli military refused the request. [40]

Separately, Amnesty International approached the Israeli Foreign Ministry and the Israeli Ministry of Social Affairs to try to register as an international organization in order to obtain access to Gaza, but officials told Amnesty International that it does not fit the criteria for registration.[41]

Human Rights Watch has also repeatedly tried to get its staff into Gaza, but beginning in 2009 the Israeli military authorities refused or failed to answer requests. During and immediately after the 2014 hostilities, Human Rights Watch made multiple unsuccessful requests to enter Gaza via the Erez crossing. In one response, the Israeli military authorities said they only accept requests from organizations registered with the Ministry of Welfare (limited to international aid organizations) or the Ministry of Foreign Affairs (limited to diplomats) and referred Human Rights Watch to another branch of the military.[42] That department refused the request, saying that it only approved entry for doctors and medical staff.[43] The authorities made an exception in September 2016, after seven years of refusals, and allowed two foreign staff members of Human Rights Watch to enter Gaza, after they requested permission to do so in order to advocate on behalf of Israeli civilians held by armed Palestinian groups in Gaza. The authorities categorized that positive response as a one-time exception, falling outside the criteria established by military policy.[44]

As of 2013, the Egyptian authorities have also refused to allow foreign human rights workers to enter Gaza during one of the infrequent openings of the Rafah border crossing, effectively closing Gaza off from the global staff of these human rights organizations and external experts invited by local groups. Neither Human Rights Watch nor Amnesty International was able to get foreign staff into Gaza during or immediately after the 2014 hostilities. In justifying its restrictions on access via Rafah, Egypt says that assuring access to and from Gaza is the responsibility of Israel, which is an occupying power in Gaza, and it also cites the security situation in the Sinai Desert, the area in Egypt bordering Gaza where armed groups engage in violent confrontations with Egyptian security forces.[45] Yet at other points in time, Egypt has managed to keep Rafah open, despite the activities of armed groups in Sinai.

In a recent letter to Human Rights Watch, the Israeli military explained why it does not permit foreign staff of human rights organizations to enter Gaza from Israel:

Exit by foreigners, lawfully present in Israel, from Israel into the Gaza Strip and their subsequent return to Israel raise the inherent risk associated with unmonitored travel between the Gaza Strip and Israel. This is partly the reason why it has been decided that exit from Israel into the Gaza Strip by foreign nationals will be permitted in humanitarian cases only and subject to the policy in effect at the time.[46]

On the one hand, the Israeli authorities interpret the criterion “humanitarian” in a narrow way, to include humanitarian circumstances personal to an applicant, such as illness or mourning the death of a family member, but to exclude human rights workers conducting work with clear humanitarian implications, such as training in rehabilitating torture victims[47] or security training to protect a staff member.[48] On the other hand, within those same narrow criteria, Israel permits nearly 7,000 crossings by merchants each month for the purpose of buying goods and 700 crossings monthly by representatives of international organizations, where, especially in the case of the merchants, one person might make multiple crossings each month.[49] 

ISA Security Screenings

All requests to travel via the Erez crossing are subject to security screenings by the ISA or Shin Bet, as it is commonly known. In some cases, the military authorities reject requests to travel based on an individualized assessment that travel by a particular person poses a security risk. Human rights groups have criticized the lack of transparency and apparent arbitrariness of the screening process.[50]

The policy described above, however, is a test that is applied to permit requests even before a person is screened by the ISA. In other words, the Israeli military first determines whether a person meets the eligibility requirement to request a permit, and only if the request meets the criteria do the military authorities consider an ISA evaluation. The refusals addressed in this report refer to refusals based on the first test: i.e. whether a person meets the criteria for travel. In some cases, human rights workers have been allowed to travel via Erez for a reason unrelated to their work in human rights organizations, meaning they have cleared the ISA screening, but when those same people request a work-related permit the military authorities refuse.[51]

Impact on Human Rights Work

The restrictions on travel make it more difficult for human rights organizations – Palestinian, Israeli and foreign – to do their work documenting human rights and IHL violations and advocating against them. The Israeli human rights group Gisha documented some of these difficulties in an extensive study on the effects of the travel restrictions on 32 civil society organizations in Gaza and the West Bank, including human rights groups.[52] By conducting interviews and focus groups, Gisha found that the inability to travel blocked access to training, impeded intra-organizational and inter-organizational working relationships and collaboration, contributed to waste and duplication of resources, made it harder to get funding, cut off access to stress-management and stress-relief opportunities, and made it more difficult for young civil society leaders to emerge and advance.

These obstacles have a direct effect on the work of human rights organizations documenting violations of the laws of war, including possible war crimes, and advocating for their remediation.

Palestinian Human Rights Workers in Gaza Isolated

Palestinian human rights workers living in Gaza find it very difficult to participate in trainings, conferences, workshops or meetings held outside Gaza, whether in the West Bank, Israel, or abroad. For Gaza-based employees of groups based in the West Bank, Israel or foreign countries, the lack of actual contact with colleagues and supervisors highlights a sense of isolation and makes it more difficult to develop and sustain the kind of working relationships that maximize productivity and creativity. Kareem Jubran, director of field research at the Israeli human rights group B’Tselem, supervises three field researchers working in the Gaza Strip. He was last able to meet two of them in 2012, when the Rafah crossing with Egypt was still open, and they traveled from Gaza to Egypt to Jordan to meet him and other staff members of the Jerusalem-based group:

The problem is with training … I’m always trying to explain things over the telephone. When we talk about the work plan, it takes time to discuss and persuade regarding what our needs are there, what we want. If I could give them more tools, research ability, theoretical knowledge regarding international law, it would help us a lot more. We are always trying to get them to trainings in Gaza, but it’s not the same as a program you build yourself. There’s also the emotional strain on them, the danger and the mental difficulty. A person like that needs to feel as if he’s part of a larger team. And he doesn’t have that feeling when he’s working in the field alone … they don’t know the staff, there are no human faces, and that affects the professional relationships … I felt that when I met them in Amman. After three years of telephone contact, I had developed a stereotype in my head of who they were. And then I discovered that their personalities were different. And from then on, it was easier to supervise them, to understand them, to know their sensitivities. It’s important for a long-term work relationship.[53]

Human rights workers in Gaza report feeling cut off from others in their field and unable to communicate their perspectives at gatherings and conferences. Fadel Mezni is a researcher at the Palestinian Center for Human Rights (PCHR). “There is no exchange or updates of ideas and principles,” he said. “The Gaza representation – their voice is silenced. In addition to the personal cost of not developing professional skills, that is the deeper, wider cost.”[54]

PCHR’s deputy director, Jaber Wishah, said that the inability to get staff out of Gaza meant that his organization could not bring its findings to international fora but rather had to rely on colleague organizations to represent its work. Advocacy is also difficult to plan, he said, because the group does not know if or when it can get staff outside, and when staff members get stuck outside Gaza waiting for the Rafah crossing to reopen, the cost of an extended stay strains the organizational budget.[55]

Bahjat al-Helou is the training coordinator at the Gaza office of the Independent Commission for Human Rights. 

© 2017 Abier Almasri

Bahjat al-Helou is the training coordinator at the Gaza office of the Independent Commission for Human Rights, a statutorily-created commission that monitors human rights compliance by the Palestinian authorities. Its headquarters is in the West Bank. He said organizational planning was difficult across the two branches without the ability to meet face to face:

I wouldn’t say the quality of our work product is lowered. We work passionately and tirelessly. But it affects the impact of our reporting and fact-finding missions. We cannot present our work. Something is lost when the person from Gaza is relying on West Bank colleagues to present and run advocacy campaigns on our behalf.[56]

Second, the travel restrictions mean that outside experts and human rights workers cannot get into Gaza, including for training or volunteer work. Wishah of PCHR said that even when he has been able to secure funding for external experts to train staff, that training has mostly taken place via teleconference, due to the inability to obtain permits. For similar reasons, PCHR has difficulty getting foreign interns and volunteers, and they often have to work out of a small PCHR satellite office in the West Bank.[57]

Samir Zaqout is the field research unit coordinator at the Palestinian human rights group Al-Mezan. 

© 2017 Abier Almasri

During and after escalations of violence, especially, the inability to get external experts or even UN investigators and human rights experts into Gaza makes it difficult to conduct documentation and reporting on potential violations of IHL. During the large-scale military operation in July and August of 2014, the Israeli authorities refused repeated requests by the global human rights organizations Amnesty International[58] and Human Rights Watch to send specially-trained emergencies researchers and weapons experts into Gaza. It also refused entry to a commission of inquiry established by the United Nations Human Rights Council to investigate potential crimes committed during the 2014 fighting.[59] While researchers at Palestinian human rights groups inside Gaza have experience in documenting the conduct of hostilities, they do not have specialized weapons training and so rely on the engineering unit of the Palestinian police to analyze shrapnel and other remains in order to determine which weapons were used and how. In 2012, external weapons experts were able to enter Gaza via Rafah to support local human rights groups, but in 2014, no external experts were able to get in.

“It would have been helpful to have external weapons experts enter Gaza” in 2014, Samir Zaqout, field research unit coordinator at the Palestinian human rights group Al-Mezan, said.[60]

Foreign Human Rights Groups Shut Out

The inability to get foreigners into Gaza is also problematic for international human rights organizations based abroad, even if they employ research assistants who are residents of Gaza.

The last time that Amnesty International was able to get staff members into Gaza was in 2012. In the summer of 2012, Israel granted permission for a delegation from Amnesty International to enter Gaza via the Erez crossing for a research project related to detention practices by the Gaza authorities. In November 2012, during the large-scale military operation, a delegation of two researchers and a weapons expert seeking to document IHL violations stemming from the conflict were not permitted to enter through Israel but reached Gaza via the Rafah crossing, which was open at that time. By 2014, however, Rafah had closed, and Israel rejected multiple requests to allow emergencies researchers and weapons and medical experts into Gaza from Israel.[61] Instead, Amnesty International worked with two local researchers hired temporarily. The external team was not even able to get safety equipment, including helmets and flak jackets, to the local researchers. Saleh Hijazi, one of the researchers responsible for Israel and the occupied Palestinian territory who was based in the UK at the time, said that without the ability to work directly with staff on the ground, he felt like he was “managing the field researcher more than focusing on the research itself ... the questions weren’t necessarily what we needed. The photographs as well were sometimes meaningless.” He said the biggest problem was the lack of military and medical experts who could examine evidence first-hand. “It’s a major loss not having these experts on the ground,” Hijazi said.[62]

The Amnesty International research team directed the local researchers by phone and Internet, and much time was spent uploading photos to be sent for analysis and sending researchers back to the field to bring supplementary information. Hijazi said that Amnesty International would have been able to do more research, and more quickly, had the team of experts been able to reach Gaza during the war and immediately afterward.

Human Rights Watch experienced similar difficulties during the 2014 war.[63] With the exception of a one-time entry in September 2016, it was last able to get foreign staff members into Gaza via Israel in 2008.  Thereafter, with one exception, the Israeli authorities refused or failed to respond to repeated requests to enter Gaza throughout the years. Until 2012, Human Rights Watch was able to get into Gaza via Egypt, but after Egypt closed the Rafah crossing to regular traffic in 2013, the Egyptian authorities also refused Human Rights Watch’s requests to enter Gaza, citing security. In 2014, the emergencies researcher, weapons expert and Israel and Palestine researcher directed the work of a consultant and a research assistant in Gaza via telephone and Internet communication. Communications with the staff on the ground were unreliable and slow. The consultant and research assistant would send photos and sketch the damage from the bombings for the weapons expert to review remotely, at best an imperfect solution.

Bill van Esveld was the Israel and Palestine researcher at the time for Human Rights Watch who directed the work of the consultant and research assistant from inside Israel:

There were a number of cases in which we needed more but we couldn’t go back, and so we dropped the cases … It’s not that we stopped reporting on them because we didn’t think there was a violation [of IHL], we stopped reporting on them because we couldn’t get the information we needed with the people on the ground that we had … It’s extraordinarily frustrating and demoralizing. Your job is to be in a place as an independent monitor. And you’re blinded. You’re not allowed to be in place, so you’re operating by remote control.

For Human Rights Watch, part of the benefit of having staff on the ground with extensive experience in conflict situations is the ability to make strategic decisions on the kind of research to make a priority, including distinguishing between IHL violations that are aberrations and violations that appear to be part of a policy. The lost time in communicating with local researchers and the lack of direct access to sites and victims limited the kind of research that Human Rights Watch could do.

In particular, not having foreign staff on the ground made it difficult to research issues that could put local staff at risk, such as IHL violations by armed Palestinian groups in Gaza. Hijazi of Amnesty International said that he was cautious to ask local staff to research violations by officials or armed groups inside Gaza that are considered sensitive, out of concern that they might be subject to retaliation. It was easier to do that kind of documentation, he said, with a foreign staff member who can travel in and out of Gaza and therefore be removed for safety reasons if necessary. Human Rights Watch has similar safety concerns and would also be better equipped to research potential IHL violations by armed groups or the Gaza authorities if its non-national staff were able to travel freely to and from Gaza. Human Rights Watch has documented arrests, harassment and torture of Palestinians in Gaza perceived to have gone too far in their criticism of the Hamas government.[64]

Representatives of the Palestinian human rights groups al-Mezan and PCHR said that although it was sensitive for residents of Gaza to report on IHL and human rights violations by armed groups or Hamas, their groups had the clout and protection to be able to do so. During the 2014 military operation, PCHR published a statement condemning Hamas for the summary executions, many of which were captured in television footage, of at least 23 men accused of collaborating with Israel.[65] A UN Commission of Inquiry[66], whose staff was not able to reach Gaza, raised concerns about additional IHL violations by armed Palestinian groups in Gaza, including deliberate and indiscriminate firing on Israeli civilians, putting Palestinian civilians at risk by firing from populated areas inside Gaza and storing weapons in civilian structures including schools.[67] None of the human rights groups based in Gaza published research on these issues, however, or on any other alleged Palestinian IHL violation, other than the summary executions.

Indeed, in the past, Palestinians in Gaza who have criticized the government or armed groups on issues considered to be sensitive have faced retaliation. In 2012, the director of international relations at al-Mezan published an opinion piece criticizing the government and armed groups in Gaza for putting civilians at risk, including by storing weapons in civilian areas.[68] Following the publication, unidentified assailants attacked him twice;[69] the Gaza authorities made no arrests in the case. That incident is far from isolated. Human Rights Watch has documented arrests and physical abuse of journalists and activists who have criticized the Hamas government, directly or indirectly,[70] and foreign journalists have complained about attempts by the Hamas government to censor their reporting, including during wartime.[71]

III. Role of Human Rights Groups in Israeli Investigations

While the Israeli authorities limit the ability of human rights groups to conduct their work in Gaza, they nonetheless cite cooperation with human rights groups as an important element of their mechanism for investigating potential violations of the laws of war.

Palestine acceded to the Rome Statute of the International Criminal Court in January 2015 and gave the court a retroactive mandate to June 13, 2014, a period that includes the 2014 military operation in Gaza. The ICC prosecutor is currently conducting a preliminary examination into the situation. The Office of the Prosecutor’s ongoing inquiry includes analyzing whether national authorities are genuinely carrying out credible investigations and, if appropriate, prosecutions in relation to potential cases being considered for investigation by the court. 

While the Israeli government has declined to cooperate with UN commissions of inquiry that have examined successive rounds of fighting in Gaza, and Israel has not acceded to the ICC treaty, it has issued a number of public statements that address the nature and adequacy of its domestic mechanisms for investigating and prosecuting IHL violations, including war crimes.

Cooperation Between Human Rights Groups and the Israeli Government

The View of the Israeli Government

In describing its mechanism for investigating and prosecuting IHL violations and other misconduct by soldiers and police, the Israeli authorities emphasize that human rights organizations help them to overcome a number of obstacles they face in learning about and investigating alleged IHL violations in the Gaza Strip. The Israeli military attorney general, who is responsible for investigating and prosecuting IHL violations among Israeli soldiers, notes that its investigations of violations that allegedly took place in Gaza are difficult because Israel no longer has a permanent ground troop presence there and cannot easily access physical evidence or witnesses:

First, the arena in which the crime was (allegedly) committed is – usually – outside the territory of the State of Israel, and in many cases in an area controlled by an enemy nation (south Lebanon) or hostile entities (the Gaza Strip). This fact significantly limits, and sometimes even completely thwarts, the ability of the investigators to visit the area and collect physical evidence found there … in addition, there are potential witnesses who hesitate to cooperate with the investigation because it is conducted by IDF officials, and there are others who refrain from providing relevant information about the activities of terrorist organizations in the area where the incident took place, out of fear of retribution.[72]

In a position paper submitted to the Turkel Commission, an Israeli governmental inquiry that examined, among other things, the adequacy of the Israeli investigatory mechanism, then-Military Attorney General Avichai Mandelblit wrote:

Throughout the years, the military investigatory police have adopted various techniques that allow investigators to overcome many of the difficulties. Thus, there is a close relationship between the military investigatory police and human rights organizations representing Palestinian complainants, and through them, these complainants and additional witnesses are summoned to give their version of events. Assistance from human rights groups allows the investigators to overcome the fear of Palestinian residents from a meeting with IDF officials [emphasis in original].[73]

According to the Military Advocate General’s office, the Israeli military receives information about possible IHL violations via individual complainants and human rights groups representing these individuals, as well as media and other reports of incidents.[74]

Indeed, following the 2014 military escalation, the Israeli Foreign Ministry issued a report on Israel’s investigative mechanisms that emphasized the importance of an “active community of domestic and international non-governmental organizations, which are a source of many of the allegations of misconduct."[75] The Foreign Ministry further noted that NGOs assist witnesses and victims in submitting complaints and providing more information to military investigators, and that human rights organizations act as a check on military decisions, appealing decisions to close investigations before the Israeli civilian authorities and Israeli courts.[76]

The View of Human Rights Groups

The Israeli, Palestinian and foreign human rights organizations cited by the Israeli authorities have been publicly critical of the Israeli investigative mechanisms, and one of them, the Israeli organization B’Tselem, has announced that it will no longer cooperate with the Israeli military investigations, calling them a “whitewash.”[77] Other groups continue to file complaints before the Israeli military authorities and even to facilitate witness testimony and supplementary information. The Palestinian human rights organizations al-Mezan and PCHR, working as part of a coalition to document alleged IHL violations in 2014, submitted 354 complaints to the Israeli military authorities.[78]

At the request of the military authorities, these groups provided additional information in more than a hundred cases. Al-Mezan facilitated witness testimony at the Erez crossing in nine cases, and in four other cases, the witnesses declined to meet the military authorities, citing fear and concern about the psycho-social effects of revisiting the trauma through testimony.[79] These groups are highly critical of the Israeli investigation mechanisms and have called for the International Criminal Court prosecutor to investigate the situation.[80] However they confirm that they do proactively share their information with the Israeli military authorities, in an attempt to facilitate accountability for IHL violations and war crimes.

Yet the limitations the Israeli military places on the ability of human rights organization to operate raise questions not only about the ability of the Israeli authorities to investigate potential war crimes but also their willingness to do so. The Israeli military says that it relies on human rights organizations to provide evidence of alleged wrong-doing that it has difficulty obtaining because it has no investigators on the ground. Military investigators do indeed seek out information from these groups. Yet the Israeli military authorities systematically deny human rights groups the access they need to maximize their ability to detect and document potential serious crimes. For example, in 2014 the Israeli military’s refusal to issue permits meant that there were no independent weapons experts in Gaza who could review evidence directly, and the only weapons analysts available were those working for the Gaza authorities’ police department. The refusal to allow experts into Gaza – and the systematic refusal to permit human rights workers in Gaza to access the training and work meetings they need to do their jobs well – would seem to undermine the nature, extent and quality of the documentation that the Israeli military says it needs from human rights groups, compromising the capacity of the Israeli military to investigate potential war crimes. On the other hand, the policy of disallowing travel for human rights workers, in contrast to the hundreds of permits issued each month for humanitarian aid workers, for example, and the thousands of permits issued each month in total, also calls into question the willingness of the Israeli military to investigate potential war crimes. If the Israeli military was genuinely motivated to detect potential wrong-doing by soldiers and officers, why does it tie the hands of the human rights workers on the ground who, as the Israeli government acknowledges, are best-positioned to detect and document violations?

Response from Israeli Government

While preparing this report, Human Rights Watch sought and received comment and information from the Israeli authorities.  In a response dated August 29, 2016, the military attorney general stated that it attributes “great importance” to its dialogue with human rights organizations, and that it maintains an “extensive and daily dialogue” with Israeli, Palestinian and foreign NGOs, including regarding allegations of misconduct during hostilities. The MAG’s Office said that it received 500 complaints relating to 360 individual incidents during the 2014 hostilities, some of which came from nongovernmental organizations. In addition, it said, it reviews reports published by Israeli, Palestinian, and foreign human rights organizations.

The MAG’s Office expressed criticism of those reports, writing that they “in many cases suffer from methodological, factual and legal flaws (for example, they rely on reporting from Palestinian sources without investigating their reliability, they identify terrorist activists as ‘civilians’ and incorrectly apply the laws of war). Sometimes these reports even exhibit a clear bias.”

Palestine Square (Al-Saha), Gaza City. 

© 2017 Abier Almasri

However, the MAG’s Office wrote, “to the extent that these reports include information that is prima facie reliable and sufficiently concrete, the claims raised in these reports are passed along in order to make a decision about whether to open an inquiry or investigation or to receive a full picture as part of an ongoing inquiry or investigation.”

The MAG’s Office went on to write that “conducting investigations of operational incidents that took place during combat, in hostile territory, involves many difficulties. Despite these difficulties, the military investigative police make many efforts to conduct these investigations thoroughly, effectively and quickly, and receiving help from nongovernmental organizations is part of these efforts.” According to the MAG, human rights groups supply affidavits and physical evidence and facilitate witnesses giving testimony to military investigators.

The MAG’s Office did not directly address Human Rights Watch’s question regarding the apparent contradiction between the importance the authorities say they attach to the work of human rights organizations and the travel limitations they impose, but it said that the assistance provided by human rights organizations in inquiries related to the 2014 hostilities was effective, “despite unavoidable restrictions imposed on travel between Israel and the Gaza Strip due to weighty security and political considerations.”[81]

IV. International Law

Israeli Obligations to Palestinians in Gaza

Israel significantly reduced its control over Gaza in 2005, when it withdrew its permanent ground troop presence and civilian settlements. However, it continues to control movement into and out of Gaza, except for the Rafah crossing, and it controls all crossings between Gaza and the West Bank. 

Israel, of course, controls its own border with Gaza. It controls Gaza’s territorial waters and airspace, and, citing security concerns, does not allow people in Gaza to operate an airport or seaport, making them dependent on foreign ports for travel abroad.[82] It also controls all travel between Gaza and the West Bank, irrespective of whether or not the traveler crosses through Israel. So even if a Palestinian human rights defender leaves Gaza for a trip to Europe and then flies to Jordan, Israel will not allow them to enter the West Bank to attend a meeting or workshop, even though they do not seek transit via Israel.[83] Such control allows the Israeli authorities to control the Palestinian population registry, including deciding who will be listed as a resident of Gaza or the West Bank, and the rates for the customs and value added taxes that it collects on behalf of the Palestinian Authority on goods entering the common market.[84] It controls a so-called “no-go” zone inside Gaza, near the border with Israel, which constitutes 17 percent of the territory of Gaza and a third of its arable land, as well as significant parts of Gaza’s infrastructure.[85]

In light of these controls that Israel effectively exercises over the lives and welfare of Gazans, Israel continues to owe obligations toward Palestinians in Gaza under the law of occupation. This “functional” approach to interpreting Israel’s obligations,[86] adopted by the International Committee of the Red Cross (ICRC), means that the framework of the law of occupation, including Article 43 of the Hague Regulations, applies to Israel’s regulation of movement to and from Gaza. This is how the ICRC explains it:

The ICRC considers, however, that in some specific and rather exceptional cases – in particular when foreign forces withdraw from occupied territory (or parts thereof) but retain key elements of authority or other important governmental functions usually performed by an occupying power – the law of occupation may continue to apply within the territorial and functional limits of such competences. Indeed, despite the lack of the physical presence of foreign forces in the territory concerned, the retained authority may amount to effective control for the purposes of the law of occupation and entail the continued application of the relevant provisions of this body of norms. This is referred to as the ‘functional approach’ to the application of occupation law. This test will apply to the extent that the foreign forces still exercise, within all or part of the territory, governmental functions acquired when the occupation was undoubtedly established and ongoing.

The functional approach described above permits a more precise delineation of the legal framework applicable to situations in which it is difficult to determine, with certainty, whether an occupation has ended or not. 

It may be argued that technological and military developments have made it possible to assert effective control over a foreign territory (or parts thereof) without a continuous foreign military presence in the concerned area. In such situations, it is important to take into account the extent of authority retained by the foreign forces rather than to focus exclusively on the means by which it is actually exercised. It should also be recognized that, in these circumstances, the geographical contiguity between belligerent States could facilitate the remote exercise of effective control. For instance, it may permit an occupying power that has relocated its troops outside the territory to reassert its full authority in a reasonably short period of time. The continued application of the relevant provisions of the law of occupation is all the more important in this scenario as these were specifically designed to regulate the sharing of authority – and the resulting assignment of responsibilities – between the belligerent States concerned.[87]

While Israel claims that the law of occupation no longer applies to its actions toward Gaza,[88] the official position of the ICRC, and of the United Nations, is that Israel remains an occupying power in Gaza.[89]

The functional approach to the law of occupation means that responsibility is assigned commensurate with control. Where, for example, the Gaza authorities fail to protect human rights defenders who criticize the behavior of armed groups, it is they who bear responsibility because they operate a police force that controls daily life inside Gaza and should provide protection. But where, for example, the Israeli military refuses to allow human rights defenders to access training outside Gaza, it is the Israeli military that bears responsibility because it controls movement into and out of Gaza.

Article 43 of the Hague Regulations of 1907 outlines the powers and responsibilities of an occupying power. It authorizes an occupant to take restrictive measures that are militarily necessary but also requires the occupant to restore public order, meaning to facilitate normal civilian life to the extent possible.[90] Israel is authorized to restrict travel for concrete security reasons, and it has the sovereign authority to regulate who crosses through Israeli territory, for example on the way to the West Bank or foreign countries, but it must balance its military needs and its authority to regulate who may enter Israel with its obligations to facilitate normal life to protected persons living under occupation.

As an occupying power, Israel also has an obligation to respect the human rights of Palestinians living in Gaza and the West Bank,[91] including their right to freedom of movement throughout the Palestinian territory[92] and the rights for which freedom of movement is a precondition, for example the right to education[93] and the right to work.[94] Palestinians enjoy a right to travel – without arbitrary restrictions – between the two parts of the Palestinian territory, Gaza and the West Bank, which Israel recognized as a single territorial unit, to leave the Palestinian territory and to return to it. Individuals also have a right to leave their own country.[95] Under international human rights law, the right to travel can be restricted for security reasons and to protect public health, morals, public order and the rights and freedoms of others. Any such restrictions, however, must be proportional, and “the restrictions must not impair the essence of the right; the relation between right and restriction, between norm and exception, must not be reversed.”[96]

These obligations limit the ability of the Israeli government to restrict travel into and out of Gaza mostly to cases in which it is necessary to meet concrete, individualized security needs. The Israeli authorities also have an obligation to facilitate the proper functioning of civil society inside Gaza, including the human rights community which works to further protections for vulnerable members of society, develop democratic values and promote fundamental individual rights – all part of developing normal life in Gaza.  There is an obligation to permit Palestinian human rights defenders to travel in and out of Gaza. However, Israel should normally not block the travel of foreign human rights defenders, present in Israel, who seek permission to enter Gaza.

The Israeli authorities should act in accordance with the United Nations Declaration on human rights defenders.[97] The Declaration states that individuals and groups working to defend human rights should be able to access resources, that NGOs have an important role to play in protecting human rights, and that limitations on the work of human rights defenders should accord with applicable international obligations.[98] Israeli authorities should consider the resources that Palestinian human rights defenders seek to access in the form of trainings abroad and foreign experts entering Gaza. In regulating access, they should take note of the role that human rights defenders play in developing and maintaining a society that protects and promotes human rights. While the declaration is not legally binding, it represents the consensus of the international community and enshrines rights protected in other instruments, such as the International Covenant on Civil and Political Rights.[99] Respect for its principles can be seen as part of facilitating normal civilian life for Palestinians who have lived under occupation for the last 50 years and seek to develop and enshrine human rights protections as part of public life in the occupied territory.

Analysis of Israel’s Travel Restrictions

Israel’s current criteria for evaluating travel requests – citing generalized security threats to limit travel to exceptional humanitarian circumstances personal to the applicant – are inconsistent with these obligations. It is noteworthy that in some cases, human rights workers receive permits to travel via the Erez crossing for an event sponsored by an international organization, medical treatment or other non-work related reasons, but the Israeli authorities refuse to allow those same individuals to travel to further their human rights work.  Normal civilian life in Gaza requires allowing people to access family members, educational and economic opportunities, medical care, and other rights for which freedom of movement is a precondition. Travel, including for human rights and health workers, is also necessary for meeting humanitarian needs, and it is required by Israel’s obligations, under the Fourth Geneva Convention, to facilitate humanitarian access in Gaza.[100]

The restrictions imposed appear to contradict Israel’s own policy, as articulated by the most senior political and military officials including the prime minister, the defense minister and the army chief-of-staff, to improve living conditions in Gaza in order to enhance stability and security.[101]  A properly functioning civil society helps communities thrive.

Israel has the sovereign authority to determine who may enter its borders. But Israel is barring Palestinians in Gaza from traveling abroad via their own ports, thus rendering them dependent on Israel for access. In addition, its authority to bar entry into Israel should be balanced by the obligations it assumes as the occupying power and its signing of international agreements requiring it to allow Palestinians to travel and choose their place of residence within the single territorial unit that Gaza and the West Bank comprise.[102] 

Israel’s restriction on Palestinians traveling between Gaza and the West Bank is based on its characterization of the West Bank as a closed military zone and its characterization of Palestinians whose addresses are listed in Gaza within the Israeli-controlled population registry as foreigners with respect to the right to enter the West Bank. Based on that position, Palestinians with addresses listed in Gaza are barred from entering the West Bank via Jordan, through the Allenby crossing, which does not require entry into Israel. In other words, Israeli restrictions on travel for Gaza residents go beyond its interest in regulating who enters its own territory. They promote a policy to keep Palestinian residents of Gaza from entering the West Bank irrespective of whether or not that travel takes place via Israel.

Al-Quds Hospital in the Gaza Strip. 

© 2017 Abier Almasri

Furthermore, Israel generally prevents foreigners, including human rights workers, already present in Israel, from crossing through the Erez crossing in order to reach Gaza. The substance of the restriction, therefore, is not refusal to allow foreigners to enter Israel but rather refusal to allow them to enter Gaza from Israeli territory, at a time when Israel is also preventing the operation of an airport or seaport that would allow independent access.

At the same time that Israel bars travel for human rights workers, since 2008 it has increased the number of crossings via Erez to thousands each month, a small fraction of the level of travel recorded prior to the outbreak of the second Intifada or uprising, but still an indication that, whatever security concerns may exist, much more can be done. Israel acknowledges that it weighs foreign policy considerations in determining which categories of Palestinians may travel, for example allowing travel at the request of diplomats from friendly nations or for football players, at the request of the world football organization FIFA.  Israel should also take into account its obligations under IHL and human rights law and allow human rights workers the access they need to maximize the effectiveness of their work.

Egypt’s Role

Egypt is not an occupying power in Gaza and therefore, despite the devastating effect that its border closure has on life in Gaza, its legal responsibilities toward Gaza residents are more limited than those of Israel.[103] Like all parties to the Fourth Geneva Convention, Egypt should do everything within its power to ensure the universal application of the Convention’s humanitarian provisions, including protections for civilians living under occupation who are unable to travel due to unlawful restrictions imposed by the occupying power.[104]  Egypt’s obligations to permit access into and out of Gaza also include facilitating humanitarian access and supplies to persons affected by armed conflict. The Egyptian authorities should also consider the impact of their border closure on the rights of Palestinians living in Gaza who are unable to travel in and out of Gaza through other routes. They should ensure that their decisions are transparent, free from arbitrariness and take into consideration the human rights of those affected. They should consider possible additional responsibilities they may have under the right of transit, usually invoked in cases of enclaves or land-locked states, and enshrined in a number of bilateral and multilateral treaties.[105]  Gaza’s access to the sea for travel abroad has been blocked by Israel since 1967, rendering it dependent on neighboring states for transit. Given the importance of the Rafah crossing, Egypt should consider allowing transit via its territory, subject to security considerations. Certainly, Egypt has legitimate security concerns regarding the Sinai desert, but it should find a way to address them through means less extreme than total closure of the border, most of the time, especially considering the fact that it kept Rafah mostly open between 2010 and 2013, despite the activities of armed groups in Sinai during that time. The current border closures take place in the context of repressive activities taken against the Egyptian Muslim Brotherhood, which is allied with Hamas.

Egypt should normally permit passage for human rights workers, especially Palestinian workers and United Nations human rights investigators, into and out of Gaza. Egypt may also have additional duties under its human rights obligations, including the African Charter of Human and People’s Rights.[106]

ICC Prosecutor’s Office’s Role

The ICC prosecutor should consider Israeli restrictions on travel by human rights workers in assessing whether Israeli domestic legal authorities can effectively investigate potential serious crimes committed in Palestine since June 2014, particularly in assessing what is known as “complementarity”. Under ICC rules and jurisprudence, the ICC will not prosecute alleged serious crimes if domestic proceedings are ongoing or have been conducted, unless the national authority is unwilling or unable to conduct genuine investigations and prosecutions.[107] Even at the stage of preliminary examinations, the ICC prosecutor considers whether a case would be inadmissible due to the existence of genuine national investigations and prosecutions.

In its November 2016 report on ongoing preliminary examinations, the ICC prosecutor indicated that her office “will assess information on potentially relevant national proceedings, as necessary and appropriate.”[108] In deciding whether a case would be admissible, the ICC prosecutor examines whether national proceedings are taking place and if so, whether the authorities are genuinely able and willing to investigate and prosecute.[109] In the event that a person has already been tried for a crime or crimes, the ICC will not prosecute that individual for the same conduct, unless the domestic proceedings were not conducted independently or impartially in accordance with international due process norms or were conducted in a manner which, under the circumstances, “was inconsistent with an intent to bring the person concerned to justice.”[110]

While the two criteria – willingness and ability – are distinct, the ICC pre-trial chamber often assesses them together, as they are related.

In assessing the willingness of national authorities to carry out genuine investigations, the prosecutor considers, among other things, whether the way the proceedings are conducted indicates an intent to shield persons from criminal responsibility. The prosecutor can assess such intent by indicators that include “manifestly insufficient steps in the investigation or prosecution,” “flawed forensic examination,” and “lack of resources devoted to the proceedings at hand as compared with overall capacities.”[111]

In assessing the ability of national authorities to carry out genuine investigations, the prosecutor considers, among other things, “the ability of the competent authorities to exercise their judicial powers in the territory concerned” and “the absence of conditions of security for witnesses, investigators, prosecutors and judges or the lack of adequate protection systems.”[112]  The ICC’s pre-trial chamber has in the past considered a national authority’s inability to obtain the necessary testimony from witnesses as an indicator of its inability to conduct adequate investigations and prosecutions.[113]

When it comes to the admissibility of cases being prosecuted, the assessment is holistic, with the ICC’s pre-trial chamber examining the entirety of the domestic proceedings, to determine their genuineness, including the availability of necessary witness testimony and documentary evidence.[114]

At this preliminary stage, in which the ICC prosecutor is examining the willingness of the Israeli authorities to investigate and prosecute potential serious crimes committed as part of the 2014 hostilities, she should consider the contradiction between the importance that the Israeli authorities’ state they attach to the role of human rights groups in obtaining evidence and witness testimony – and the steps the Israeli authorities take to limit and constrain the work of those same groups, Palestinian, foreign, and Israeli. 

In evaluating the ability of the Israeli authorities to conduct genuine investigations, the prosecutor should consider the restrictions imposed by the Israel authorities on human rights workers which have, in turn, limited their ability to collect evidence for potential cases. Human rights organizations can be essential in identifying possible victims and providing physical evidence gathered in the context of their own investigations, as the Israeli Military Attorney General’s Office notes. However, the very tight restrictions on travel by Palestinian human rights workers and the blanket ban on workers from foreign human rights organizations entering Gaza limit the scope of witness testimony and physical evidence that can be available to the Israeli authorities.

The prosecutor should consider the limitations on forensic evidence available to the Israeli authorities as a result of their refusal to allow outside weapons experts into Gaza and to allow human rights workers in Gaza to leave Gaza in order to obtain training and certification. Further, Palestinian victims and witnesses may not be easily persuaded to come forward in light of their high levels of distrust of Israeli authorities, making it even more difficult to bring forward criminal cases and making the effective interventions of human rights organizations even more critical.

To the extent that allowing more human rights workers to travel into and out of Gaza would require resources from Israel’s military and intelligence, Human Rights Watch notes that the Israeli authorities have devoted resources to accommodate travel requests from other categories of people, including merchants, football players, and VIPs.[115] Against this backdrop, the limits on human rights workers seems especially difficult to justify. 

[1] See Section I, infra.

[2] Hague Convention (IV) Respecting the Laws and Customs of War on Land, adopted October 18, 1907, 1 Bevans 631, entered into force January 26, 1910.

[3] United Nations Refugee Works Association (UNRWA), “Where We Work,” http://www.unrwa.org/where-we-work/gaza-strip (accessed August 4, 2016).

[4] Israeli Military Advocate General Corps, “General Exit Permit (no. 5) (Judea and Samaria),” West Bank, 1972; Corresponding Permit for the Gaza Strip.

[5] The Israeli Palestinian Interim Agreement on the West Bank and the Gaza Strip, September 28, 1995, art. 31; Human Rights Watch, Israel’s Closure of the West Bank and Gaza Strip, vol. 8, no.3, July 1996, https://www.hrw.org/reports/1996/Israel1.htm; Gisha-Legal Center for Freedom of Movement, Separating Land, Separating People: Legal Analysis of Access Restrictions between Gaza and the West Bank, June 2015, pp. 3-4, http://gisha.org/UserFiles/File/publications/separating-land-separating-people/separating-land-separating-people-web-en.pdf (accessed August 4, 2016).

[6] Ibid, Gisha, Separating Land, Separating People, timeline on p.3. See also B’Tselem and Hamoked, One Big Prison: Freedom of Movement to and from the Gaza Strip on the Eve of the Disengagement Plan, March 2005, http://www.btselem.org/download/200503_gaza_prison_english.pdf (accessed August 4, 2016).

[7] Ibid, B’Tselem, One Big Prison, p. 13.

[8] A summary and analysis of official Israeli statements at that time are available in Gisha, Disengaged Occupiers: The Legal Status of Gaza, January 2007, pp. 22-26, http://www.gisha.org/UserFiles/File/publications_english/
Publications_and_Reports_English/Disengaged_Occupiers_en.pdf
(accessed August 4, 2016).

[9] Israeli Ministry of Foreign Affairs, “Security Cabinet Declares Gaza Hostile Territory,” September 19, 2007,  http://www.mfa.gov.il/mfa/pressroom/2007/pages/security%20cabinet%20declares%20gaza%20hostile%20territory%2019-sep-2007.aspx (accessed August 4, 2016). On the policy to restrict movement in order to weaken the economy in Gaza, see Albassiouni v. Prime Minister, Case no. HCJ 9132/07, State Submission of November 2, 2007, para. 44 (in Hebrew), http://gisha.org/UserFiles/File/Legal%20Documents_/fuel%20and%20electricity_oct_07/state_response_2_11_07.pdf (accessed August 4, 2016).

[10] Gisha, What is the Separation Policy?, June 2012,  http://www.gisha.org/UserFiles/File/publications/Bidul/bidul-infosheet-ENG.pdf (accessed August 4, 2016); Gisha, The Separation Policy: List of References Prepared by Gisha, July 2014, http://gisha.org/UserFiles/File/publications/separation_policy_2014.pdf (accessed August 4, 2016).

[11] Kafarne v. Defense Minister, Case no. HCJ 495/12, State Response of August 16, 2012, para. 26 (in Hebrew), tinyurl.com/k3o8ckn (accessed August 11, 2016). Excerpts unofficially translated by Gisha are available at tinyurl.com/p4jc9x9 (accessed August 11, 2016).

[12] B’Tselem v. State of Israel, (Application no. 19657-08/13), Preliminary State Response of August 14, 2013, Beersheva, Appendix; Letter from Public Complaints Unit of the Gaza District Coordination Office in the Israeli Defense Ministry to Gisha, August 11, 2013 (in Hebrew), http://www.gisha.org/UserFiles/File/LegalDocuments/19657-08-13/preliminary_response_14.8.13.pdf (accessed August 4, 2016).

[13] Gisha, “Exit of Palestinians to Israel and the West Bank via Erez Crossing 01/2010 – 12/2016,” http://gisha.org/graph/2392 (accessed February 8, 2017).

[14] Ibid.

[15] Ibid.

[16] UN OCHA-OPT, “Erez Crossing: Movement of People into and out of Gaza,” http://data.ochaopt.org/gazacrossing.aspx (accessed March 22, 2017).

[17] Nandini Krishnan, Tara, Vishwanath, Angelica Thumala, Patti Petesch, Aspirations on hold? Young lives in the West Bank and Gaza (Washington, DC: World Bank, 2012) http://documents.worldbank.org/curated/en/200831468328798038/Aspirations-on-hold-Young-lives-in-the-West-Bank-and-Gaza (accessed March 3, 2016); Gisha, A Costly Divide: Economic Repercussions of Separating Gaza and the West Bank, February 2015, http://gisha.org/UserFiles/File/publications/a_costly_divide/a_costly_divide_en-web.pdf (accessed August 10, 2016).

[18] B’Tselem and Hamoked, So Near and Yet So Far: Implications of Israeli-Imposed Seclusion of the Gaza Strip on Palestinians’ Right to Family Life, January 2014, http://www.btselem.org/sites/default/files2/201401_so_near_and_yet_so_far_eng.pdf (accessed August 11, 2016).

[19] Palestinian Center for Human Rights, Actual Strangulation and Deceptive Facilitation, March 2016, pp. 31-33, http://pchrgaza.org/en/?p=7962 (accessed August 15, 2016); Physicians for Human Rights-Israel, #Denied: Harassment of Palestinian Patients Applying for Exit Permits, June 2015, http://cdn2.phr.org.il/wp-content/uploads/2016/04/Denied-2015-New-Report.pdf (accessed August 15, 2016).

[20] Gisha, Student Travel Between Gaza and the West Bank 101, September 2012, http://www.gisha.org/UserFiles/File/publications/students/students-2012-eng.pdf (accessed August 11, 2016).

[21] “Gaza: Donors, UN Should Press Israel on Blockade,” Human Rights Watch news release, October 12, 2014, https://www.hrw.org/news/2014/10/12/gaza-donors-un-should-press-israel-blockade.

[22] UN OCHA-OPT, “Rafah Crossing-Movement of People into and out of Gaza,” http://data.ochaopt.org/gazacrossing/index.aspx?id=2 (accessed February 9, 2017).

[23] Gisha, Scale of Control: Israel’s Continued Responsibility in the Gaza Strip, November 2011, pp. 12-14, http://gisha.org/UserFiles/File/scaleofcontrol/scaleofcontrol_en.pdf (accessed August 9, 2016). In 2001, Israel bombed the airport that had operated briefly in Gaza and destroyed the site where construction of a seaport was to begin.

[24] Palestinian NGO Network, “Mission and Vision,” http://www.pngo.net/mission-vision/ (accessed August 4, 2016).

[25] Gisha v. Coordinator of Government Activities in the Territories, (Application no. 22775-02-11), unpublished document on file with Human Rights Watch, Tel Aviv, January 13, 2013; Gisha v. Office of the Coordinator of Government Activities in the Territories, (Application no. 51147-05-13), unpublished document on file with Human Rights Watch, Tel Aviv, May 10, 2016.

[26] Department of Operations and Coordination, Coordination of Government Activities in the Territories (COGAT), Israeli Ministry of Defense, “Unclassified status of permissions for entry of Palestinians to Israel, their passage between Judea and Samaria and the Gaza Strip, and their departure abroad,” February 6, 2017 (in Hebrew), http://gisha.org/he/legal/procedures-and-protocols/ (accessed March 12, 2017).

[27] “Israel: Rules Curtail Family Visits for Gaza Prisoners,” Human Rights Watch news release, July 31, 2016, https://www.hrw.org/news/2016/07/31/israel-rules-curtail-gaza-family-visits-prisoners.

[28] Gisha, “Exit of Palestinians to Israel and the West Bank via Erez Crossing 01/2010 – 12/2016,” http://gisha.org/graph/2392 (accessed February 8, 2017).

[29] OCHA OPT, “Erez Crossing.” Figures are for the first half of 2016.

[30] COGAT, “Status of permissions,” chap. 2, para. 6a.

[31] See, e.g., Musalam v. IDF Commander, Case no. HCJ 2748/12, unpublished document on file with Human Rights Watch, April 16, 2012 (in Hebrew), rejecting a request for the legal advisor of the Gaza Community Mental Health Programme to cross to the West Bank to receive training in rehabilitation for torture victims because, among other reasons, there was no humanitarian situation “specific to the petitioner.” See also email from Maj. Or Elrom, head of foreign relations and infrastructure section, Coordination and Liaison Administration to the Gaza Strip, to Human Rights Watch, August 14, 2014 (unpublished email on file with Human Rights Watch), rejecting a request to allow foreign staff members into Gaza because Human Rights Watch is not registered with the Israeli Ministry of Welfare or Ministry of Foreign Affairs; Letter from Captain Guy Shekel, legal adviser to Gaza DCO, Department of International Law, Israeli Military Attorney General’s office, to Gisha, February 3, 2014 (unpublished letter, in Hebrew, on file with Human Rights Watch), rejecting a request from the Palestinian Center for Human Rights (PCHR) to have a foreign doctoral student enter for meetings because the request did not raise exceptional humanitarian reasons, and PCHR is not a recognized foreign organization.

[32] Letter from Ofer Iko, Public Information Officer, Israeli Ministry of Social Welfare, to Gisha, January 27, 2014, http://www.gisha.org/UserFiles/File/LegalDocuments/procedures/foreign_nationals/55.pdf (accessed August 5, 2016).

[33] Letter from Gisha to Attorney General Avichai Mandelblit, June 2, 2016 (unpublished letter, in Hebrew, on file with Human Rights Watch).

[34] B’Tselem v. State of Israel-Interior Minister, (Application no. 19657-08/13), Beersheva, State Preliminary Response of August 14, 2013, para. 10.

[35] B’Tselem v. State of Israel-Interior Minister, (Application no. 19657-08/13), Beersheva, State Response of September 17, 2013, para. 23 (in Hebrew), http://gisha.org/he/legal/4016/ (accessed July 27, 2016).

[36] See for example a letter from Public Affairs Department of COGAT to Gisha, August 12, 2013 (in Hebrew), http://www.gisha.org/UserFiles/File/LegalDocuments/19657-08-13/preliminary_response_14.8.13.pdf (accessed March 1, 2017); Musalam v. IDF Commander; Letter from Guy Shekel to Gisha, February 3, 2014.

[37] B’Tselem v. State of Israel-Interior Minister, (Application no. 19657-08/13), Beersheva, Petition of August 8, 2013 (in Hebrew), http://www.gisha.org/UserFiles/File/LegalDocuments/19657-08-13/petition.pdf (accessed August 10, 2016).

[38] Human Rights Watch interview with Jaber Wishah, deputy director of PCHR, Gaza City, November 11, 2015; Human Rights Watch telephone interview with Samir Zaqout, field research unit director of Al-Mezan, August 4, 2016.

[39] Email from Saleh Hijazi of Amnesty International to Human Rights Watch, August 17, 2016.

[40] Ibid.

[41]  Ibid.

[42] Email from Maj. Or Elrom, August 14, 2014.

[43] Letter from Sec. Lt. Nir Yaron, civil application officer, Gaza CLA, COGAT, to Human Rights Watch, August 19, 2014 (on file with Human Rights Watch): “In these times, the state of Israel only lets doctors and medical staff crosses (sic) through the Gaza strip. Because your purpose of crossing is not a medical reason - your request is denied (emphasis in original).”

[44] Letter from Captain Guy Shekel, legal adviser, Gaza DCO, Department of International Relations, Military Attorney General’s Office, to Human Rights Watch, August 4, 2016 (in Hebrew).

[45] ”Sameh Shoukri: Rafah Crossing does not contribute to siege on Gaza,” ElWatan News, July 25, 2014 (in Arabic), http://www.elwatannews.com/news/details/527334 (accessed February 20, 2017);  “Egypt closes Rafah border crossing with Gaza ‘until further notice’,” Middle East Eye, October 25, 2014, http://www.middleeasteye.net/news/egypt-rafah-772435585 (accessed March 2, 2017).

[46] Letter from Lieut. Coral Mel, public inquiries officer, Gaza District Coordination Office, to Human Rights Watch, January 11, 2016 (in Hebrew, on file with Human Rights Watch). 

[47] Masalam v. IDF Commander.

[48] Letter from Sergeant First Class Adham Salame, Public Inquiries Department, Gaza District Coordination Office, to Human Rights Watch, December 1, 2015. The letter was sent in response to a request for a foreign staff member to enter Gaza in order to provide security training for an employee living in Gaza.

[49] OCHA OPT, “Erez Crossing,” Figures are for 2016; Gisha, “Erez Crossing;” Gisha, “Exit of Palestinians to Israel and the West Bank via Erez Crossing,” http://gisha.org/graph/2392 (accessed February 8, 2017).

[50] Human Rights Watch, “Process of Getting a Permit,” in Israel’s Closure; Association for Civil Rights in Israel, “ACRI: Rescind Shin Bet Prohibited Classification,” February 6, 2007, http://www.acri.org.il/en/2007/02/06/acri-rescind-shin-bet-prohibited-classification/ (accessed August 10, 2016); Gisha, “Security blocks restricting travel through Erez crossing,” December 2016, http://gisha.org/UserFiles/File/publications/Security_blocks/Security_blocks_factsheet_designed.pdf (accessed December 23, 2016).

[51] See for example B’Tselem v. Defense Minister, State Response of August 14, 2013, para. 16. One of the petitioners, a field researcher for B’Tselem, had crossed through Erez for reasons unrelated to his work three years prior to the petition. In paragraph 18, the state asserts that it did not request security screenings for the petitioners at the time of the petition because “their request does not fall within the criteria that permit entrance.”

[52] Gisha, “Split Apart,” March 2016, http://gisha.org/UserFiles/File/publications/civil_society/Split_apart_en.pdf (accessed June 24, 2016).

[53] Human Rights Watch phone interview with Kareem Jubran, field research director, B’Tselem, July 28, 2016.        

[54] Human Rights Watch interview, Gaza City, November 8, 2015.

[55] Ibid.

[56] Human Rights Watch interview, Gaza City, November 11, 2015.

[57] Interview, Jaber Wishah, November 8, 2015.

[58] Human Rights Watch telephone interview with Saleh Hijazi, Israel and OPT researcher, Amnesty International, July 22, 2016.

[59] “UN Commission of Inquiry on Gaza hears moving testimony, seeks access,” United Nations High Commissioner for Human Rights press release, December 23, 2014, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15456&LangID=E (accessed March 1, 2017).

[60] Human Rights Watch telephone interview, August 4, 2016.

[61] Telephone interview with Saleh Hijazi.

[62] Ibid.

[63] “Israel/Egypt: Provide rights groups access to Gaza,” Human Rights Watch and Amnesty International news release, August 20, 2014, https://www.hrw.org/news/2014/08/20/israel/egypt-provide-rights-groups-access-gaza.

[64] “Palestine: Crackdown on Journalists, Activists,” Human Rights Watch news release, August 29, 2016 https://www.hrw.org/news/2016/08/29/palestine-crackdown-journalists-activists.

[65] PCHR, “PCHR Calls for Stopping Extra-judicial Executions in Gaza,” August 22, 2014,  http://pchrgaza.org/en/?p=1590 (accessed August 11, 2016). The Independent Commission for Human Rights also documented the executions: ICHR, Monthly Report, August 2014 (published October 15, 2014), http://ichr.ps/attachment/35/August%20report-ICHR.pdf?g_download=1 (accessed December 15, 2016).

[66] United Nations Office of the High Commissioner for Human Rights, “Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict,” U.N. Doc. A/HRC/29/52, June 2015, http://www.ohchr.org/Documents/HRBodies/
HRCouncil/CoIGaza/A-HRC-29-52_en.doc
(accessed July 15, 2016).

[67] See also “UNRWA strongly condemns placement of rockets in school,” UNRWA press release, July 14, 2014, http://www.unrwa.org/newsroom/press-releases/unrwa-strongly-condemns-placement-rockets-school (accessed July 20, 2016).

[68] Mahmoud Abu Rahma, “The gap between resistance and governance,” Ma’an News Agency, January 5, 2012, http://www.maannews.com/Content.aspx?id=449852 (accessed August 1, 2016).

[69] “Gaza/West Bank: Investigate Attacks on Rights Defenders,” Human Rights Watch news release, January 19, 2012, https://www.hrw.org/news/2012/01/19/gaza/west-bank-investigate-attacks-rights-defenders.

[70]“Palestine: Crackdown on Journalists, Activists,” Human Rights Watch news release, August 29, 2016, https://www.hrw.org/news/2016/08/29/palestine-crackdown-journalists-activists.

[71] Foreign Press Association of Israel, Statement of August 11, 2014, http://www.fpa.org.il/?categoryId=101307 (accessed August 11, 2016).

[72] Israeli Military Attorney General’s Office, “Inquiry and investigatory mechanisms regarding complaints and allegations about violations of the laws of wars,” Position Paper, December 19, 2010, pp. 4-5 (in Hebrew), http://www.turkel-committee.gov.il/files/wordocs/9111emPatzar.PDF (accessed December 1, 2016).

[73] Ibid, pp. 5-6.

[74] Israeli Military Attorney General’s Office, “Inquiry and investigatory mechanisms regarding complaints and allegations about violations of the laws of wars – additional information,” Position Paper, August 9, 2011, para. 6 (in Hebrew), cited in Public Commission to Examine the Maritime Incident of 31 May 2010, Second Report – the Turkel Commission, February 2013, p. 336 para. 87, http://www.turkel-committee.gov.il/files/newDoc3/The%20Turkel%20Report%20for%20website.pdf (accessed July 10, 2016).

[75] Israeli Ministry of Foreign Affairs, Gaza Conflict: Factual and Legal Aspects, May 2015, para. 422, http://mfa.gov.il/ProtectiveEdge/Pages/default.aspx (accessed August 8, 2016).

[76] Ibid, paras. 439-440.

[77] B’Tselem, Occupation’s Fig Leaf: Israel’s Military Law Enforcement Mechanism as a Whitewash Mechanism, May 2016, http://www.btselem.org/download/201605_occupations_fig_leaf_eng.pdf (accessed August 7, 2016).

[78] Al-Mezan, Briefing Update: Israel’s investigations on criminal complaints submitted by Palestinian NGOs in Gaza on behalf of victims of attacks on Gaza in July and August 2014, November 2015, p.3, http://mezan.org/en/post/20953/
UPDATE%3A%3Cbr%3EBriefing+on+Israeli+investigations+into+%E2%80%8Ecriminal+complaints+submitted+by+Palestinian+NGOs+in+%E2%80%8EGaza+on+behalf+of+victims+of+attacks+on+Gaza+in+July+%E2%80%8Eand+August+2014%E2%80%8E
(accessed August 5, 2016).

[79] Ibid, p. 4.

[80] Ibid, p.7; Palestinian Center for Human Rights, Annual Report, 2014, p. 87, http://www.pchrgaza.org/files/2015/annual_pchr_eng_2014.pdf (accessed August 9, 2016). See also “Palestine: ICC Should Open Formal Probe,” Human Rights Watch news release, June 5, 2016, https://www.hrw.org/news/2016/06/05/palestine-icc-should-open-formal-probe.

[81] A full English translation of the letter from the Military Attorney General is provided in Annex 2 of this report.

[82] See footnote 23 (Gisha, Scale of Control).

[83] Israel controls the Allenby Bridge land crossing between Jordan and the West Bank and ordinarily does not allow passage into the West Bank for Palestinians who are listed in the Israeli-controlled population registry as living in Gaza. Israel says that the West Bank is a closed military zone, and that Palestinians whose addresses are listed in Gaza in the Israeli-controlled population registry have no right to enter the West Bank, irrespective of whether they seek to transit through Israel. Ibid, p. 24.

[84] Ibid, pp. 17-19.

[85] Ibid, pp. 20-22.

[86] Ibid, p. 30.

[87] International Committee of the Red Cross, International humanitarian law and the challenges of contemporary armed conflicts, 32IC/15/11, November 2015, p. 12, https://www.justsecurity.org/wp-content/uploads/2015/11/2015-ICRC-Report-IHL-and-Challenges-of-Armed-Conflicts.pdf (accessed August 10, 2016). See also an article by the legal adviser to the ICRC on issues of occupation, writing in his personal capacity: Tristan Ferraro, “Determining the Beginning and End of Occupation,” International Review of the Red Cross, vol. 94, no. 885, Spring 2012, p. 157, https://www.icrc.org/eng/assets/files/review/2012/irrc-885-ferraro.pdf (accessed August 9, 2016).

[88] See for example Physicians for Human Rights v. Defense Minister, Case no. HCJ 10265/05, State Submission of July 11, 2006 (on file with Human Rights Watch); Hamdan v. Southern Military Commander and related cases, Case no. HCJ 11120/05, State Response of January 19, 2006, para. 26-29 (in Hebrew), http://tinyurl.com/l9ourfg (accessed December 15, 2016).

[89] Both the ICRC and the UN continue to refer to Gaza as occupied territory. See email from Yves Sorokobi, Office of the UN Secretary General Spokesperson, to Gisha, February 7, 2007 (on file with Human Rights Watch): “The UN welcomed the Israeli disengagement from Gaza in August 2005. However, there has been no change in our characterization of the Gaza Strip as occupied territory.” See ICRC, “Gaza Closure Not Another Year!”, June 14, 2010, www.icrc.org/eng/resources/documents/update/palestine-update-140610.htm (accessed December 14, 2016).  See also Gisha, Scale of Control, pp. 29-30; Gisha, Separating Land, Separating People,” footnote 5, pp. 10-11.

[90] Hague Regulations concerning the Laws and Customs of War on Land.

[91] International Court of Justice (ICJ), Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ GL no, 131, ICJ Rep 136, July 9, 2004, paras. 106-113.

[92] International Covenant on Civil and Political Rights (ICCPR), art. 12. See also the Universal Declaration of Human Rights, Article 13, which reflects customary international law. Article 13 of the Universal Declaration stipulates that “everyone has the right to freedom of movement and residence within the borders of each state” and that “Everyone has the right to leave any country, including his own, and to return to his country.”

[93] International Covenant on Economic, Social and Cultural Rights, art. 13.

[94] Ibid, art. 6.

[95] ICCPR, footnote 92 (ICCPR), art. 12 (2).

[96] General Comment no. 27, CCPR/C/21/Rev.1/Add.9 (General Comments), paras. 13-15.

[97] Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (“Declaration on human rights defenders”), adopted on March 8, 1999, G.A. Res 53/144, U.N. Doc. A/RES/53/144. 

[98] Declaration on human rights defenders, arts. 13, 17, 18.

[99] United Nations Office of the High Commissioner for Human Rights, Fact Sheet no. 29, “Human Rights Defenders: Protecting the Right to Defend Human Rights.”

[100]Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), adopted August 12, 1949, 75 U.N.T.S. 287, entered into force October 21, 1950, arts. 23, 50, 55-56.

[101] Gisha, “List of quotes by officials on security-access nexus,” July 4, 2016, http://gisha.org/UserFiles/File/publications/
Gaza_reconstruction_quotes.pdf
(accessed August 12, 2016).

[102] The Israeli Palestinian Interim Agreement on the West Bank and the Gaza Strip, September 28, 1995, art. 11. For a discussion of the application of the right to freedom of movement to the Palestinian territory, see Gisha, Separating Land, Separating People, footnote 5, pp. 17-25.

[103] Gisha, Rafah Crossing: Who Holds the Keys?, March 2009, pp. 162-7,  http://www.gisha.org/UserFiles/File/publications/Rafah_Report_Eng.pdf (accessed August 11, 2016).

[104] Fourth Geneva Convention, art. 1. See also ICJ, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, July 9, 2004, paras. 155-160, finding that states have an obligation not to recognize the illegal situation created by the construction of the separation barrier in the West Bank.

[105] Elihu Lauterpacht, “Freedom of Transit in International Law,” in Transactions of the Grotius Society, vol. 44 (1958), p. 320; Convention on Transit Trade of Landlocked States, adopted July 8, 1965, 597 U.N.T.S. 3, entered into force June 9, 1967, art. 12.

[106] A 2014 complaint to the African Commission on Human and Peoples’ Rights (ACPHR) alleges that Egypt’s closure of its border with Gaza violates Charter provisions protecting the right to life, the right to freedom of movement and the right to self-determination. ACPHR, Communication 479/14 Palestine Solidarity Alliance and 5 others v. Egypt, ACHPR/COMM/EGY/ 479/14/02/262/15, 2014, https://www.scribd.com/document/258275977/Human-Rights-Council-Resolution-S-21-1# (accessed February 13, 2017).

[107] Rome Statute, arts. 17(1)(a) and 17(1)(b).

[108] International Criminal Court (ICC), Office of the Prosecutor, Report on Preliminary Examinations 2016, November 14, 2016, para. 145.

[109] ICC, Office of the Prosecutor, Policy Paper on Preliminary Examinations, November 2013, para. 49, http://www.legal-tools.org/doc/acb906/ (accessed November 18, 2016).

[110] Rome Statute, art. 20(3)(b).

[111] Policy Paper on Preliminary Examinations, para. 51.

[112] Ibid, para. 57.

[113] Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case no. ICC-01/11-01/11-344-Red, Decision on the Admissibility of the Case against Saif Al-Islam Gaddafi, May 31, 2013, para.209. 

[114] See for example Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case no. ICC-01/11-01/11, Decision on the Admissibility of the Case against Abdullah al-Senussi, October 11, 2013, paras. 190-191, 202.  

[115] COGAT, “Permissions in the Closure,” note 26.

Posted: January 1, 1970, 12:00 am

If you experience an overdose in the city of Washington Court House, Ohio, you could be charged with a crime.

Within the last two months, the city’s law enforcement has used Ohio’s Inducing Panic statute to charge at least 12 people who overdosed with “caus[ing] serious public inconvenience or alarm” – a first-degree misdemeanor that can lead to 180 days in jail and a fine of up to US$1,000. All this because law enforcement and medical responders arrived to save their lives by treating an overdose.

A syringe used for injecting the opioid heroin. 

© Chaiwat Subprasom / Reuters

This kind of heavy-handed enforcement can only serve to worsen Ohio’s severe opioid crisis. According to the Center for Disease Control, Ohio is tied with Kentucky for the third-highest rate of death from overdose in the US (West Virginia is first, with New Hampshire second). The state’s Department of Health reports that fatal overdoses have soared to 3,050 in 2015 from 411 in 2000, largely due to opioids.

As the American Civil Liberties Union pointed out in a letter to the city, it makes little sense to argue that people who receive treatment in a genuine medical crisis should be punished for criminal inducement of panic. The practice could also have life-threatening consequences, as it puts the loved ones of overdose sufferers in a painful bind – do nothing and risk seeing your child, parent, partner, or friend die, or call for help and risk seeing them prosecuted.

Increasing criminal penalties for drug use is not the solution to Ohio’s opioid crisis. Despite widespread criminalization in the US over the past 25 years – making drug use or possession by far the most arrested offenses in the country – usage rates have not significantly dropped. Criminalization also fails to address the underlying causes of drug dependence. What the city of Washington Court House should be providing is access to health and harm reduction services, including clean syringes, the overdose reversal medication naloxone, and access to treatment.

Washington Court House’s implementation of the Inducing Panic statute is a misguided and counterproductive approach to dealing with Ohio’s drug problem. The president has announced a commission to assess the nation’s opioid crisis and make recommendations. Ending punitive and harmful practices such as this one should be a top priority.  

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Tuesday was the 25th anniversary of AIDSWatch, the annual convening of people living with HIV and their allies in Washington, DC, to urge Congress to protect access to health care and services. This year’s event was the biggest yet, with more than 600 people from 34 states, the District of Columbia, and Puerto Rico. There was good news to celebrate, but there much remains to be done. “This is the best of times and the worst of times for HIV,” said Amfar’s Greg Millett.

AIDSWatch participants with Senator Marco Rubio, March 28, 2017, Washington DC.

For the first time since the epidemic began, the trend looks promising: the number of new HIV cases fell 18 percent from 2008 to 2014. Last week, the American Health Care Act was pulled, a law that would likely have reduced access to health care for the 242,000 people living with HIV on Medicaid. Medicaid covers more than 40 percent of people living with HIV, including Roberta, a 47-year-old bus driver from Campti, Louisiana who has lived with HIV for more than a decade.

Protecting her health has not been easy for Roberta. A single mom, she had no health insurance until the state expanded Medicaid last July. “I couldn’t always afford my medications. Sometimes I had to buy my pills from people I knew who had extra, a few pills at a time.” Now with Medicaid coverage, she has gotten glasses, been to the dentist, discovered a thyroid condition through blood tests, and most importantly, not missed a dose of her anti-retroviral prescriptions.

But legislative threats to health care are not over with the demise of the AHCA. President Trump has said he will “let Obamacare explode,” but many fear his administration will all but ensure that happens. Trump’s Health and Human Services Secretary, Tom Price, supported billions of dollars in cuts to Medicaid in the AHCA, and health advocates are bracing for similar proposals during the budget process now underway. 

Millions of Americans like Roberta depend on Medicaid to get the care they need. For them, the fight may only just be getting underway.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am
Posted: January 1, 1970, 12:00 am