On the eve of World AIDS Day we are publicising an important case concerning vicious and humiliating human rights abuses on the basis of a person’s HIV status by a respected international media organisation, Al Jazeera. These violations are contrary to key principles of South Africa’s own response to HIV as well as well as the strategy of the leading United Nations body dealing with HIV; the Joint United Nations Programme on HIV/AIDS (UNAIDS) aims to achieve zero discrimination by 2015.
Whilst we pursue legal claims on behalf of our client, we call on the South African government and UNAIDS to intervene independently to protect the rights of a South African citizen and to ensure that they do what they can to bring justice to our client and others in a similar situation. The facts and key issues are set out below.
At this point our client our client does not want his identity revealed and we ask the media to refrain from speculating as to the identity of our client. All requests for further information should be directed to SECTION27.
What are the facts which gave rise to this complaint?
MR is a senior journalist from South Africa. He accepted a job as a Senior Editor with Al Jazeera in October 2010 and relocated to Doha. Two months after his arrival, he was sent for a battery of medical tests. He was not informed which tests in particular were being conducted. He was also not informed of the results of any of these tests.
One month later, having still not received the results of his blood tests, MR underwent blood tests at his own expense at a private clinic. When he returned for his results later that evening, he was chased off the clinic premises by clinic staff and security guards.
The following day he was called to a meeting at Al Jazeera’s offices. On his arrival, he was ordered to get into a car and driven to the Doha Prison, where he was detained in a crowded cell. He was forced to undergo a full medical examination, including a full body search, in front of the other prisoners.
After his release from the Doha Prison, he was ordered to leave Qatar within 48 hours, failing which he would be arrested. He was also informed that his employment contract had been terminated.
On his return to South Africa he discovered that he has HIV, and that his HIV status was the reason for his arrest, incarceration, dismissal and deportation.
What legal route do we intend to pursue?
MR has suffered unfair discrimination on the basis of his HIV status as well as severe violations of numerous other rights. We have approached the members of the South African delegation to the International Labour Organisation (ILO) with a request that they lodge a complaint against Qatar.
The complaint arises out of conduct committed by government officials as well as employees of Al Jazeera, which is a state-owned entity. The complaint also highlights the numerous Qatari laws which are in conflict with Qatar’s international law obligations.
On 21 October 2011 we informed Qatar and Al Jazeera of our intention to make this request to the South African delegates to the ILO. We demanded the appointment of MR to the position of Managing editor with retrospective effect, on the basis that he could discharge his responsibilities from South Africa for as long as Qatar’s policy on HIV and immigration remains in place. We also demanded a formal acknowledgement of the violations of MRs rights.
We requested a response to our demands by 11 November 2011. We received no response from either of them.
Why do we need to approach the ILO for relief?
Because Al Jazeera is based in Qatar, only a Qatari court would be able to adjudicate a case brought by MR challenging his unfair dismissal and other human rights violations. The violations of MR’s rights, however, are all sanctioned by Qatari law. It is therefore necessary to challenge these laws as contrary to Qatar’s international law obligations.
In addition, it would be impractical to institute proceedings in a domestic court in Qatar. Because MR has HIV, he would not be granted a visa to enter Qatar for the purposes of his case.
What are Qatar’s international law obligations?
Qatar is a member state of the ILO and has ratified the Discrimination (Employment and Occupation) Convention, 1958. We argue that this Convention is to be interpreted in the light of the HIV and AIDS Recommendation, 2010 and the Code of Good Practice on HIV/AIDS and the World of Work, 2001. Qatar is also bound by the Universal Declaration of Human Rights, which is both a self-standing document having the status of customary international law and an instrument for interpretation of other international conventions.
The obligations arising from these documents include the following:
- They prohibit discrimination on the grounds of HIV status and require member states to take positive steps to eliminate all forms of discrimination;
- They require the protection of privacy of workers and their families, particularly the confidentiality of their HIV status;
- They require plans on prevention, treatment, care and support of workers living with HIV, including the promotion of voluntary counselling and testing;
- They require reasonable accommodation to allow people living with HIV to continue to work, as long as they are medically fit to do so;
- They protect the right to life, liberty and security of the person;
- They prohibit torture and cruel, inhuman or degrading treatment or punishment; and
- They prohibit arbitrary arrest, detention or exile.
How has Qatar failed to comply with its international law obligations?
Qatar is one of five countries which deny visas to foreign nationals based on their HIV status. In the event that a foreign national is found to have HIV after he or she has already entered Qatar, the Minister of the Interior is empowered by domestic law to order the deportation of that person. If deportation is not immediately possible, the Minister of the Interior is allowed to detain the foreign national pending deportation. In addition, there is no prohibition on discrimination against or the dismissal of employees arising from their HIV status.
MR was subjected to HIV testing without his informed consent. While others were informed of his test results without his consent, he was never informed. He was offered no counselling or support services. His contract of employment was terminated solely as a result of his HIV status and no consideration was given to reasonable accommodation, including allowing MR to work remotely, to accommodate the prohibition on his residence in Qatar. Before his HIV status was discovered, MR was informed that a Managing Editor post was being created and that he would be promoted to this post. The duties of Managing Editor may be performed remotely from outside Qatar. Indeed these duties are currently being performed by an employee based in London.
MR was also detained and deported solely as a result of his HIV status. During his detention he was subjected to severe breaches of his privacy as well as his right against cruel, inhuman and degrading treatment.
In addition, Qatar has failed to pass legislation and implement policies which increase the protection given to people living with HIV and eliminate all forms of discrimination against them.
The conduct of Qatar and Al Jazeera is akin to the policies adopted by the South African government under apartheid, where HIV status was the basis for the forced repatriation of migrant workers. One significant difference is that, unlike the 1980s and early 1990s, HIV infection may now be well-managed with access to antiretroviral treatment.
What process will be followed in lodging the complaint?
The request to the South African delegates to lodge a complaint with the ILO was sent on 21 November 2011. If and when the complaint has been lodged, Qatar will be given an opportunity to respond. The ILO may then appoint a commission of inquiry to investigate the matter and make recommendations to resolve the complaint. The parties may then refer the matter to the International Court of Justice in the event that the complaint is not resolved to their satisfaction.
Which organisations have expressed their support for this campaign?
We have secured the support of UNAIDS, the Treatment Action Campaign, COSATU, its affiliates the Communication Workers Union (CWU) and the Broadcasting Electronic Media and Allied Workers Union (BEMAWU), and the Media Workers’ Association of South Africa (MWASA). This is a case which calls on all organisations to voice their objections to discrimination on the grounds of HIV status, particularly where such discrimination is applied systemically through a country’s laws and policies.
What are the implications of Qatar’s laws more broadly?
The discriminatory laws in place in Qatar, and many other gulf states, have a severe impact on the prevention, treatment, care and support of people living with HIV. Many migrant workers, particularly from South East Asia, seek work in Qatar and other gulf states. The fact that these migrant workers may be deported on the basis of their HIV status has a major impact on their home countries and the responsibility of these governments to deal with loss of income, increased unemployment and an additional burden on their domestic health systems. Qatar’s policies also deepen the stigma attached to HIV status.
Enquiries: Contact Nikki Stein on 011 356 4100 or email@example.com