Indictment on Migration and the Right to Health

, by  Groupe de Travail TPP/Mobilisation


In this trial, we call upon the Permanent Peoples’ Tribunal (PPT) to carefully examine whether the current migration and asylum policies of the Federal Republic of Germany and the EU violate the right to health and physical and psychological integrity of migrants and refugees, in particular the Arts of the Universal Declaration of the Rights of Peoples signed in Algiers in 1976; whether it seriously violates the rights of the individual as set forth in the Universal Declaration of Human Rights of 1948; and whether and to what extent these violations of rights, taken as a whole, constitute a crime against humanity as defined in Art 7 of the Rome Statute of 1998.

The present indictment is part of a series of indictments against the governments of the EU member states and institutions of the EU. They are based on a general framework document that was developed in the PPT’s opening hearing on "Human Rights of Migrant and Refugee Peoples" in Barcelona in July 2017.

These indictments together show how the governments of the ’Global North’ and the institutions of the EU have created conditions under which millions of people in the ’Global South’ are deprived of their livelihoods and forced to migrate; which treat those who have migrated to the ’Global North’ as ’non-persons’ by denying them rights that are due to all human beings on the basis of their common humanity, including the rights to life, human dignity and freedom; and which in practice have created legal vacuum in the ’Global North’ with regard to the rule of law and human rights.

In general, illegalized migrants* and refugees represent particularly vulnerable groups of people who experience systematic violations of their right to health and physical and psychological integrity. Even before and during migration they are confronted with war or armed conflicts, human rights violations, traumatic losses, as well as climate change, expropriation or displacement caused by a system of global exploitation. This system is supported by a labour and migration policy that favours the freedom of movement of capital and citizens of the ’global north’ while people from the ’global south’ are denied this freedom. Migrants and refugees become a class of illegalized, exploited and deportable people and workers who are exposed to (state) violence and repressive and racist policies and practices.

Based on their common experiences of oppression and repression, it can be said that migrants and refugees form a "people" in the sense of the Universal Declaration of the Rights of Peoples (Declaration of Algiers). This declaration states that every people has a right to exist and that no one, on account of his or her national or cultural identity, may be subjected to persecution, deportation, expulsion or living conditions that may affect the identity or integrity of the people to whom he or she belongs.

The Human Right to Health

The Human Right to the enjoyment of the highest attainable standard of physical and mental health (Right to Health) is recognized in numerous sources of the law. Because human life is the vital basis of human dignity it is indispensable for the exercise of all other human rights. The following provisions are relevant to the considerations of the Tribunal:

The right to health and medical care are recognized in Art 25 of the Universal Declaration of Human Rights (UDHR) as attributes of the human right to an adequate standard of living. They are inseparably linked to the right to social security in the event of sickness and to the rights to food, clothing and housing. Art 25 UDHR reads:

  1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
  2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

The WHO’s interpretation of the right to health, which was already enshrined in its constitution in 1946 and upheld at the Alma-Ata Conference in 1978 , continues to be regularly invoked.

As a binding document the International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR), which has been ratified by Germany, is of particular importance. Art 12 ICESCR reads:

  1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
  2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
    • The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
    • The improvement of all aspects of environmental and industrial hygiene;
    • The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
    • The creation of conditions which would assure all medical service and medical attention in the event of sickness.

The monitoring UN-Committee on Economic, Social and Cultural Rights (CESCR) has emphasized multiple times that the Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers and other migrants, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation” [1] In its General Comment No. 14 of 2000 [2] The CESCR has further differentiated the minimum requirements of the right to health and identified the obligations of all state parties to respect, to protect and to fulfil. They have to be met not only on a national level but also on an international level through joint cooperation. The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health. This includes “refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum-seekers and illegal [undocumented] immigrants, to preventive, curative and palliative health services” and “from enforcing discriminatory practices as a State policy”. The obligation to protect requires States to take measures that prevent third parties from interfering with Art 12 ICESCR. The obligation to fulfil requires States to adopt appropriate measures towards the full realization of the right to health. States must ensure the provision of health care, which must be accessible for all and without discrimination, as well as equal access to food and drinking water, basic sanitation and adequate living conditions.

Germany has recognized the right to health in numerous other international binding agreements, e. g. in Arts 2 and 5e (4) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Art 11 .and 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Art 24 of the Convention on the Rights of the Child (CRC) and Arts 25, 26 of the Convention on the Rights of Persons with Disabilities (CRPD).

On a European level, Germany has recognized the European Social Charta (ESC). Although it has still not recognized the revised version of the ESC 1996 it is bound to the provisions of the original one. Art 11 ESC provides for the right to protection of health. Art 13 ESC ensures the right to social and medical assistance to any person without adequate resources. The European Committee on Social Rights has explicitly stated that the ESC contains the obligation to guarantee at least emergency medical care for undocumented migrants. [3] Further provisions can be found in the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) which, according to its Art 4, has to be implemented without discrimination on any ground such as migrant or refugee status.

The EU has for the scope of the full implementation of Union law recognized the right to health in Art 35 of the Charter of Fundamental Rights (CFR). Art 35 CFR reads:

Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.

Because in EU Member States, the scope of healthcare to which a third-country national has access depends on their residence or employment status, various directives have been installed, that shall be implemented by the member states. According to Council Directive 2003/109/EC (Long Term Residents Directive), long-term residents enjoy the same access to healthcare as nationals. Where beneficiaries of international protection are concerned the Directive 2011/95/EU (Recast Qualification Directive) grants access to adequate healthcare, including treatment of mental disorders when needed, to beneficiaries of international protection under the same eligibility conditions as nationals. Where applicants of international protection are concerned Directive 2013/33/EU (Reception Directive) establishes minimum standards for access to healthcare during the asylum procedure. It requires EU Member States to ensure that asylum seekers at least receive emergency care and essential treatment for illnesses and serious mental disorders. Art 17 (2) of the Reception Directive further requires member states to guarantee the subsistence and the physical and mental health and to ensure that that standard of living is met in the specific situation of vulnerable persons as well as in relation to the situation of persons who are in detention. Where undocumented migrants are concerned the Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (Return Directive) has to be implemented. Arts 5 and 14 of the Return Directive oblige member states to take due account to the best interest of the child, family life and the state of health of the third-country national concerned and respect the principle of non-refoulement.

Further the European Court of Human Rights has ruled that inadequate health care and denial of access to the health care system may violate the right to life in Art 2 of the European Convention on Human Rights (ECHR) [4], the right to respect for privacy and family life Art 8 ECHR [5] or the prohibition against torture or inhuman treatment in Art 3 ECHR [6].

In the German Constitution the right to health is included in in the fundamental right to life and physical integrity in Art 2 (1) GG and the fundamental right to a subsistence minimum, which derives from the human dignity clause in Art 1 (1) GG in connection with the principle of the welfare state in Art 20 (1) GG. The latter guarantees the physical minimum (food, clothing and housing, health) and the cultural minimum. [7] The German constitutional court made it clear that the right to the subsistence minimum is a human right and extends to non-nationals. Under no circumstances can migration policy considerations justify lowering the standard of benefits below the constitutionally required minimum standard of living. [8]

List of alleged violations [9]

  • Access to health care
  • Effects of living conditions in mass housing on mental and physical health
  • Deportation and health
  • EU Border Policy and Germany’s Responsibility
  • Criminalization of solidarity
  • Police whale/policing and racial profiling
  • Specific charges against the German government (in its own right and as representative of the EU and member states and the global North)

[1CESCR, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (Art 2, para. 2), 25. September 2009, U.N. Doc. E/C.12/GC/20, para. 30; CESCR, Statement: Duties of States towards refugees and migrants under the International Covenant on Economic, Social and Cultural Rights, 13. March 2017, U.N. Doc. E/C.12/2017/1, para. 3.

[2CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art 12), 11 August 2000, UN Doc. E/C.12/2000/4.

[3nternational Federation of Human Rights Leagues (FIDH) v. France, Complaint No. 14/2003, decision on the merits of 8 September 2004, §§30f.

[4EGMR (GK) 17.7.2014, Centre for Legal Resources im Namen von Valentin Câmpeanu gg Rumänien, Nr 47848/08.

[5EGMR 27.2.2018 Mockutė v. Lithuania, Nr. 66490/09, Rn. 93-94 mwN

[6EGMR 2.5.1997, D. gg das Vereinigte Königreich, Nr 30240/96; EGMR (GK) 27.5.2008, N. gg das Vereinigte Königreich, Nr 26565/05.

[7BVerfG, 5.11.2019 – 1 BvL 7/16 –, juris; BVerfGE 132, 134 (160); BVerfGE 125, 175 (223).

[8BVerfGE 132, 134 (173).

[9The full text of the indictment is available here.