Lost in the crisis: legal accountability for SRHR in humanitarian settings
If persons in humanitarian settings are to receive the SRH services they need, governments must be accountable for human rights and political commitments they have made.
Humanitarian situations across the globe are proliferating—some due to war and its aftermath, others due to climate and economic crises. In all of them, barriers to health care, including sexual and reproductive health (SRH) services, persist and the most marginalized populations bear the greatest burdens. Promoting and implementing accountability for international legal and political commitments is critical if persons in humanitarian settings are to receive the SRH services and information they need.
Barriers to SRH services, including obstetric care, abortion, post abortion care, and contraception, are further exacerbated by stigma, discrimination and lack of autonomy. Evidence shows that pregnant women experience increased medical risks in crisis settings, and current estimates indicate that over 60% of all otherwise preventable maternal deaths occur in fragile and humanitarian settings, totaling more than 500 daily deaths. Despite their essential and life-saving nature, and repeated calls and commitments to prioritize SRH services in humanitarian settings by key duty-bearers, including governments and donors, they have failed to live up to their obligations.
If persons in humanitarian settings are to receive the SRH services they need, governments must be accountable for human rights and political commitments they have made. Law and policy makers at all levels, national to global, have generally failed to implement international human rights law (IHRL) and its robust legal standards to support access to SRH services in humanitarian settings, including during armed conflict.
Barriers to SRH services, including obstetric care, abortion, post abortion care, and contraception, are further exacerbated by stigma, discrimination and lack of autonomy.
This occurs despite the gaps in the provision of SRH services have been raised as a human rights imperative across multilateral fora, including in recent resolutions at the Human Rights Council, in OHCHR’s technical guidance, in a UN Working Group on Discrimination against Women and Girls report, in UN Security Council resolutions on Women, Peace and Security, and recent reports by Commissions of Inquiry and Fact-Finding Missions, established by the UN.
Implementing international legal obligations and ensuring accountability, including IHRL and international humanitarian law (IHL) would help extend meaningful and effective accountability and thus, help increase access to these critical services.
It is often heard that the implementation of human rights in humanitarian settings—despite legal obligations to do so—is not realistic or that it can even undermine access to services in practice due to the politics and legal restrictions around some SRH services, such as abortion. We have evidence, however, that when human rights are integrated into the provisions of health services, they can help promote access to such services.
For example, in a refugee camp in northern Uganda, the Center for Reproductive Rights and CARE Uganda have established a unique rights-based accountability mechanism that operationalizes human rights obligations and improves access to SRH (sexual and reproductive health) services for refugee and host community women and girls. The project builds the capacity of community representatives to integrate a human rights-based approach to service provision. It establishes a mechanism for collection, review, and response to community-led monitoring of sexual and reproductive health outcomes and service users’ SRHR (sexual and reproductive health and rights)-related complaints and feedback when services fall short of human rights standards. To ensure accountability, the mechanism is supported by an ombudsperson, with authority to review and provide reasoning for decisions taken and to ensure access to an effective remedy when rights are not respected.
The mechanism has reviewed complaints and been able to provide redress and improve services, including through revision of bylaws related to discrimination and stigma experienced by pregnant adolescents when accessing SRH services, making medical equipment more accessible for women with disabilities and menstrual hygiene kit distribution programs more youth friendly, and restoring access to anti-retroviral treatment for incoming refugees. The project is a rare example of an accountability mechanism which concretely operationalizes international human rights law to improve access to SRH services in a humanitarian setting.
The role and relationship of various branches of international law
In a recent paper, issued by the Center for Reproductive Rights, we analyze the role and relationship of various branches of international law in humanitarian settings, and identify the standards and gaps in international law to provide SRHR services.
Some key findings that we hope contribute to improved accountability and help support work such as that in Uganda are:
First, IHRL applies in all situations and at all times, including in humanitarian settings and including during armed conflict. This means that there is an obligation under international law to guarantee persons their full range of human rights irrespective of the circumstances or context they find themselves in. This is critical in the area of SRHR because IHRL standards are more robust than in any other body of international law. An example of this is the CEDAW General Recommendation on women and conflict.
Second, there is a long-standing principle that international humanitarian law and international human rights law provide complementary and mutually reinforcing protection for persons in situations of armed conflict. SRH services which are protected by the human rights obligation to be free from torture and other ill treatment, include emergency contraception, and abortion in cases of rape and in other circumstances, should also apply under IHL’s provisions on humane treatment. But we have yet to see express protection for such services under IHL.
Human rights, including SRHR, are not just an add-on in humanitarian responses, but rather are essential to an effective response, for protection of persons, and for duty-bearers to fulfil their obligations under international law.
A third consideration is that under IHRL, all civilians, including survivors of sexual and gender-based violence (SGBV) should have access to the medical care they need, including SRH services.
While IHL contains some important obligations regarding the treatment of civilian women, particularly pregnant women and survivors of SGBV, it falls short in expressly guaranteeing access to the full range of SRH services for all persons. Moreover, health care protections afforded to women under IHL are often premised on limited and sometimes harmful stereotyped roles of women who are recognized only as mothers, as caregivers, as victims, or as upholders of honor. This perpetuates gender-based stereotypes and also excludes persons of diverse sexual orientation and gender identity.
There is little preventing IHL protections from being understood to include a more robust range of SRH services for civilians. In fact, IHL provisions on women, non-discrimination, and protections related specifically to the provision of medical care, can support this broader interpretation of IHL.
Human rights, including SRHR, are not just an add-on in humanitarian responses, but rather are essential to an effective response, for protection of persons, and for duty-bearers to fulfil their obligations under international law. IHL needs to recognize that all persons in humanitarian contexts retain their human rights and as such must have access to the full range of SRH information and services in line with human rights obligations. The law alone is not a silver bullet in removing barriers to access to health care, but when combined with other efforts it can be an important tool for accountability.
Christina Zampas is an international human rights lawyers focusing on sexual and reproductive rights and gender equality and the associate director for Global Advocacy at the Center for Reproductive Rights.
Rebecca Brown is an international human rights lawyers focusing on sexual and reproductive rights and gender equality and the senior director for Global Advocacy at the Center for Reproductive Rights.